Public Reason

Journal of Political and Moral Philosophy

Public Reason is a peer-reviewed journal of political and moral philosophy. Public Reason publishes articles, book reviews, as well as discussion notes from all the fields of political philosophy and ethics, including political theory, applied ethics, and legal philosophy. The Journal encourages the debate around rationality in politics and ethics in the larger context of the discussion concerning rationality as a philosophical problem. Public Reason is committed to a pluralistic approach, promoting interdisciplinary and original perspectives as long as the ideal of critical arguing and clarity is respected. The journal is intended for the international philosophical community, as well as for a broader public interested in political and moral philosophy. It aims to promote philosophical exchanges with a special emphasis on issues in, and discussions on the Eastern European space. Public Reason publishes two issues per year, in June and December. Public Reason is an open access e-journal, but it is also available in print.

Public Reason is available online at http://publicreason.ro

ISSN 2065-7285

EISSN 2065-8958

Print version published by Editura Universității din București for Public Reason.

© 2010 by Public Reason

Editors

Editor in Chief

Romulus Brancoveanu, University of Bucharest

Associate Editor

Thomas Pogge, Yale University

Editorial Team

Assistant Editor

Mircea Tobosaru , University of Bucharest

Laurentiu Gheorghe, University of Bucharest

Dorina Patrunsu, University of Bucharest

Editorial Board

Ovidiu Caraiani, University Politehnica of Bucharest

Luigi Caranti, University of Catania

Radu Dudau, University of Bucharest

Mircea Dumitru, University of Bucharest

Adrian - Paul Iliescu, University of Bucharest

Ferda Keskin, Istanbul Bilgi University

Valentin Muresan, University of Bucharest

Mihail - Radu Solcan, University of Bucharest

Constantin Stoenescu, University of Bucharest

Ion Vezeanu, University of Grenoble

Advisory Board

Sorin Baiasu, Keele University

Radu J. Bogdan, Tulane University

Paula Casal, University of Reading

Fred D’Agostino, University of Queensland

Cecile Fabre, University of Edinburgh

Rainer Forst, Goethe University, Frankfurt am Main

Gerald Gaus, University of Arizona

Axel Gosseries Ramalho, Catholic University of Louvain

Alan Hamlin, University of Manchester

John Horton, Keele University

Janos Kis, Central European University, Budapest

Jean-Christophe Merle, University of Tübingen

Adrian Miroiu, SNSPA Bucharest

Adrian W. Moore, University of Oxford

Philippe Van Parijs, Catholic University of Louvain

Mark Timmons, University of Arizona

Public Reason

Journal of Political and Moral Philosophy

Vol. 2, No. 2, December 2010

Articles

Kalle Grill

Anti-paternalism and Invalidation of Reasons 3

Enzo Rossi

Modus Vivendi, Consensus, and (Realist) Liberal Legitimacy 21

Ina Kerner

“Scales of Justice” and the Challenges of Global Governmentality 40

Endre Begby

Rawlsian Compromises in Peacebuilding? Response to Agafonow 51

Matthias Katzer

The Basis of Universal Liberal Principles in Nussbaum’s

Political Philosophy 60

Michael Harbour

Religious Toleration and Public Funding for Abortions: a Problem with Christopher Eberle’s Standard of “Conscientious Engagement” 76

Asger Sørensen

Dussel’s Critique of Discourse Ethics as Critique of Ideology 84

Book Reviews

Amartya Sen, The Idea of Justice 102

Reviewed by Stefan Bird-Pollan

Axel Gosseries and Lukas Meyer (edited by), Intergenerational Justice 105

Reviewed by Cédric Rio

© 2010 by Public Reason

Public Reason 2 (1): 3-26

Rawlsian Compromises in Peacebuilding? Response to Agafonow

Endre Begby

University of Oslo

Abstract: This paper responds to recent criticism from Alejandro Agafonow. In section I, I argue that the dilemma that Agafonow points to – while real – is in no way unique to liberal peacebuilding. Rather, it is endemic to any foreign involvement in post-conflict reconstruction. I argue further that Agafonow’s proposal for handling this dilemma suffers from several shortcomings: first, it provides no sense of the magnitude and severity of the “oppressive practices” that peacebuilders should be willing to institutionalize. Second, it provides no sense of a time frame within which we can hope that endogenous liberalization should emerge in the local political culture. Finally, it provides no suggestion for what the international community should do if the desired liberalization should fail to materialize within that time frame. In section II, I show that Agafonow’s argument resonates poorly with the concepts and ideas that he claims to adopt from Rawls’s Political Liberalism. Instead, his argument evokes the guiding ideas behind Rawls’s later work The Law of Peoples. I offer a critical perspective on these ideas, focusing specifically on Rawls’s treatment of women’s rights. Section III applies this critical perspective to Agafonow’s arguments, before closing with an example of a more constructive and empirically informed approach that critical studies of post-conflict reconstruction could take.

Key words: liberal peace, human security, peacebuilding, post-conflict reconstruction, Rawls, political liberalism, women’s rights.

In “Human Security and Liberal Peace,”[1] J. Peter Burgess and I undertook to defend the idea of liberal peacebuilding from a recent spate of criticism. These critics, we argued, draw erroneous conclusions from otherwise legitimate data. It does not follow from the failure of any number of liberal peacebuilding operations that there is something inherently misguided about the principles and ideals of the liberal peace as such. In fact, we argued, much of the criticism can be seen to implicitly confirm the very principles and ideals it purports to criticize: for instance, individual peacebuilding operations are said to fail because they seek to impose political institutions from outside in a way that neglects the importance of self-determination and local ownership of political processes.[2] But self-determination and local ownership are precisely among the core principles underlying the philosophy of liberal internationalism. The problem, then, is not with these principles and ideals themselves, but with our failure to implement them in practice.

Further, we argued that these criticisms typically rely on rhetorical moves which underestimate the depth and extent of conflict in the communities in question. We can see this from critics’ brazen reference to a putative opposition of interest between “us” – Western hegemons looking to impose our political values from outside – and “them” – the natives whose legitimate interest in upholding their own way of life is jeopardized by such hegemonic imposition. We pointed out that most liberal peacebuilding operations occur in the aftermath of humanitarian interventions or, at any rate, in the aftermath of conflict scenarios grave enough to warrant such intervention. In such scenarios, we cannot simply speak of a unitary political subject – a “they” – whose interests we must seek to take into account. Instead, the communities in question are torn precisely by deep conflicts of interest. Thus, one of the defining aims of liberal peacebuilding is to assist in the creation of a political institutional framework capable of dealing equitably and peacefully with ethnic or religious tensions as well as other sources of conflict. Nothing in the critics’ arguments could so much as begin to suggest that liberal democratic institutions are not best suited to that aim, no matter how challenging it can be to realize such institutions in practice.[3]

At heart, much of the criticism is rooted in the view that liberal internationalism is founded on the presumption of the absolute universality and political priority of a certain conception of human rights. Such rights-thinking, the suspicion has it, is fundamentally individualistic (i.e., Western), and may therefore fail to find a footing in more traditional societies. Burgess and I were concerned to show that with the more recent incorporation into liberal internationalist thought of ideas about human security,[4] these suspicions can be quelled, at least to some extent. Human security, we wrote, accommodates the idea that “the needs of human individuals to be part of larger communities is among their basic needs, inasmuch as it is through membership in such communities that individuals derive their basic sense of self and the value-sets around which they organize their lives” (Begby and Burgess 2009, 99).

I. Agafonow’s argument

These latter remarks provide the starting point for a recent response paper by Alejandro Agafonow.[5] Agafonow raises questions concerning the ability of liberal internationalism – even as tempered by ideas concerning human security – to provide a framework for thinking about peacebuilding in conflict-torn societies. While by and large sympathetic to our argument, as well as to the larger program of liberal peacebuilding, Agafonow wonders nevertheless whether the liberal peace, with its rights-centered agenda, might be blind to the sorts of compromises of moral and political principle which might be required in order to construct stable political institutions in societies emerging from conflict. Facing up to the exigencies of such peacebuilding tasks might require privileging “community security over personal security, institutionalizing what, from a liberal point of view, are oppressive practices.” By contrast, if such compromises were ruled out in principle, in the name of upholding a liberal conception of individual political rights and their priority, “it might close the door for liberalism to thrive in the long run in more traditional societies” (Agafonow 2010, 78).

One example of what, on this view, might have to be compromised in order to reach stable political arrangements in more traditional societies is – predictably, one must say – the rights of women, as well as principles that directly and asymmetrically impinge on women’s essential interests, such as marriage law and family law.[6] The flipside of this would be that allowing such compromises in the early stages of peacebuilding might provide for liberalization to be achieved “in the long run,” but now a form of liberalization which would emerge spontaneously from within the local political culture itself. Such endogenous liberalization will hold significantly better prospects for achieving long-term stability than liberal institutions imposed from outside. As an illustration, Agafonow points to the emergence of the All-India Muslim Women’s Personal Law Board (AIMWPLB) in 2005. He writes:

This act of self-determination, prompted from within the Muslim minority itself, was motivated by what is perceived as discriminatory decisions against Muslim women. […] It is possible that this act of self-determination would have taken more time to occur if Muslims did not have to live together with the Hindu minority. (Agafonow 2010, 82)

Thus, Agafonow’s argument is structured around two main ideas. The first idea is that achieving any kind of workable political stability in post-conflict societies might require that certain matters of importance be compromised, at least for the time being. And, one might think, women’s political rights and domestic security are less pressing concerns, at least right away, than putting an end to ongoing large-scale atrocities. The other idea is that allowing such interim compromises might, in the long run, induce the political factions to liberalize on their own initiative, in ways that bear the imprint of the local culture, and which therefore might prove more sustainable than similar measures imposed from outside.

Agafonow’s argument certainly does point to a real challenge. It is doubtful, however, that it is a challenge unique to liberal peacebuilding. Any kind of foreign involvement in peacebuilding processes will face these sorts of compromise-dilemmas. Maybe the best one can say is that liberal internationalism at least requires one to be honest and explicit about the sorts of ideals and principles that would be compromised in a given case. It thus provides a framework in which we can at least begin to assess the magnitude of the predicament that the local political culture finds itself in.

Concerning the second idea, I am less convinced: ideally, of course, one would hope for liberalization to emerge spontaneously from within. But Agafonow’s argument can hardly claim to provide much in the way of a constructive proposal here: for instance, it provides no sense of the magnitude and severity of the “oppressive practices” that peacebuilders should be willing to institutionalize. Further, it provides no sense of a time frame within which we can hope that liberalization should emerge spontaneously from within. Finally, and relatedly, it provides no suggestion for what the international community should do if the desired liberalization should fail to materialize within that time frame.

Like so many of the recent criticisms of liberal peacebuilding, then, Agafonow’s argument no doubt succeeds in highlighting a problem (though not one that is unique to liberal peacebuilding), but fails to provide anything that could reasonably be described as an alternative. I will return briefly to these issues toward the end of this paper, after first considering another aspect of Agafonow’s argument.

II. The Rawlsian Background

Agafonow calls on certain Rawlsian concepts to make his points: sensitivity to the need for compromise is the hallmark of political liberalism; the product of the compromise is what we may call an overlapping consensus.[7] As Rawls famously argued, an overlapping consensus may serve as the foundation of legitimate and properly stable political institutions in irreducibly pluralistic societies. Agafonow may be right that societies emerging out of civil conflict can indeed be marked by an irreducible pluralism in this sense. Moreover, we can surmise that their ability to find a way of recognizing and working around this irreducible pluralism would be a vital first step toward forging the foundations of a lasting peace.

But there are obvious problems with Agafonow’s invocation of Rawlsian concepts such as political liberalism and overlapping consensus to bolster his arguments. Political liberalism applies to well-ordered societies. “Well-ordered society” is a technical term in Rawls, subject to at least three substantial constraints. A well-ordered society is one, first, in which “everyone accepts, and knows that everyone else accepts, the very same principles of justice;” second, where “[the] basic structure […] is publicly known, or with good reason believed, to satisfy these principles;” and finally, where “its citizens have a normally effective sense of justice and so they generally comply with society’s basic institutions, which they regard as just.” Rawls summarizes as follows: “In such a society the publicly recognized conception of justice establishes a shared point of view from which citizens’ claims on society can be adjudicated” (Rawls 1996, 35).

The societies we are considering are emphatically not well-ordered in Rawls’s sense. Nor should we entitle “an overlapping consensus” just anything that will support a relatively stable form of political co-operation. Instead, an overlapping consensus is a consensus on the actual principles of justice (as opposed to a consensus about what to designate by the term “principles of justice”). That is, a Rawlsian overlapping consensus is, in substantial part, a consensus precisely about individuals’ basic rights and their political priority.[8] These rights are emphatically not a matter for compromise in political liberalism. Rawls’s point in developing the theory of political liberalism is to show that an irreducibly pluralistic society can be stable in spite of its pluralism, provided it can achieve an overlapping consensus about these very rights and their priority. An overlapping consensus would have all parties agree that these are indeed the rights that constitute the foundation of their political co-operation, even though they might disagree about the further reasons why these are the rights in question. An overlapping consensus is stable for the right reasons (a matter of great significance in Rawlsian theory) only in virtue of being precisely a consensus concerning these very rights; a society can be well-ordered only in virtue of being founded on a consensus concerning these rights. Neither of these conditions holds in the sorts of cases Agafonow considers. Accordingly, his argument cannot support itself on the strength and prestige of the Rawlsian concepts that he invokes.

Instead, Agafonow’s thinking evokes another strand of Rawls’s philosophy, namely that which comes to expression in his later work The Law of Peoples.[9] But this strand of thought is much more controversial, and enjoys little of the plausibility and robustness of the ideas that form political liberalism. The Law of Peoples is about the limits of toleration in international affairs. The argument on offer is that the threshold of tolerability (and hence of legitimacy) of political systems in international affairs is significantly lower than what we – liberal democracies – would recognize as affording legitimacy in our own domestic setting. Here is one way to think about it: Political Liberalism aims to articulate the ideals and self-image of a pluralistic democratic society – our society. The claim made in The Law of Peoples, then, is that not every society need satisfy the standards of a pluralistic democratic society in order nonetheless to be a legitimate partner in international co-operation to a democratic society like ours, i.e., in order to qualify for full standing in the “Society of Peoples.”

But such “decent hierarchical societies,” as Rawls calls them, must nonetheless satisfy substantial political constraints. Specifically, they must honor a “special class of urgent rights,” which includes “freedom from slavery and serfdom, liberty (but not equal liberty) of conscience, and security of ethnic groups from mass murder and genocide” (Rawls 1999, 79). Further, they must also afford to every population group some input on political processes through what Rawls calls a “decent consultation hierarchy.”[10]

Maybe this vision of a hierarchically structured but nonetheless decent society can provide a more precise sense of what Agafonow has in mind. Liberal peacebuilders, then, would need to be open to the tolerability of political institutions which compromise on certain sorts of non-basic rights, including but not limited to the right of democratic representation, but which do not compromise on basic or fundamental rights, such as the right to life and freedom from enslavement.

We note that, like Agafonow, Rawls pins the tolerability of such arrangements in part on the psychological supposition that such toleration may well, in the long run, prove the best way to get these societies to liberalize.[11] But we note also that, like Rawls, Agafonow is not explicit about the fact that such internally generated liberalization is not to be relied upon. There is no empirical support for the thesis that liberalization will, as a matter of fact, occur as the result of such compromises, nor that such compromises constitute the best or most reliable method of encouraging liberalization. We further note that in Rawls’s theory, decent societies are to be tolerated (and thus to be regarded as legitimate) as they currently are, not for what we hope they might become if left to their own devices. As pointed out above, Agafonow commits himself to no comparable stance concerning the long-term tolerability of compromised political arrangements which fail to precipitate the desired kind of endogenous liberalization. This is a serious lacuna in Agafonow’s argument.

Finally, there is one further structural feature of Rawls’s Law of Peoples which is worth remarking on here. The Law of Peoples is intended to satisfy the idea that non-Western, non-democratic societies may be hierarchically organized, in ways that are at odds with our liberal ideals (and which are thus “not fully just” by liberal lights[12]), yet which may be legitimate by domestic criteria. In this way, Rawls aims to make room for an alternative to the perceived individualism of Western society. Yet the way Rawls structures this proposal is striking and in many ways peculiar. In a decent, non-liberal society, political legitimacy is founded not on the assumption that every individual has adequate political representation (qua individual), but rather on the assumption that every group has adequate political representation, and that every individual is a member of some such group.

Rawls thereby appears to assume that the communities in question divide neatly along familiar group lines, say, of ethnicity or religion. His idea is that a political arrangement can be decent if each individual person is a member of some such sub-group, and every sub-group receives adequate political representation through the consultation hierarchy. What is remarkable about this proposal is that it asks no questions about the quality of representation internal to any of these groups, so long as basic human rights are not violated. Accordingly, there is a double sense in which a decent, non-liberal society can be hierarchical: it can be hierarchical, first, in the sense that not every group has the same political status.[13] But there is also a second sense in which a decent society can be hierarchical, namely that each group could itself be hierarchically organized. Thus, particular individuals can be doubly disenfranchised: first, in being a member of a non-privileged group; second, in being a non-privileged member of such a group.

These peculiarities are compounded by the fact that Rawls gives no serious consideration to the political interests of groups that cut across the recognized group lines, prominently, women. In the few places that Rawls does consider women as a group in their own right, it is with an eye toward stipulating that in decent hierarchical societies, their basic human rights are not violated.[14] But even when these basic human rights are secured, there is still ample room for the institutionalization of oppressive practices, with no outlook toward improvement. With this, Rawls seems to hold that our definition of political decency has no need to take into account any special interest groups apart from the familiar religious or ethnic divisions, and that women’s rights are adequately dealt with in terms of gender-neutral basic human rights. Needless to say, this is extremely controversial and deeply problematic.[15]

III. Closing remarks

Analogous causes for concern arise from Agafonow’s argument. On his view, as we saw, women’s rights are among the political principles that we might have to be prepared to sacrifice in order to achieve stable political institutions. Thus, we should have to be prepared to institutionalize practices that are oppressive from the point of view of liberal thought. To my mind, such proposals merit serious consideration only when they can meet a set of further constraints. First, they should offer a clear sense of the magnitude and severity of the compromises that we should be willing to accept, or, perhaps better put, what sorts of compromises we should not be willing to accept. Second, they should offer a clear sense that these compromises are interim measures, and that the status of these oppressive practices should be reevaluated on a relatively sharply defined time frame. Third, they should offer a clear sense of how we are to comport ourselves if the desired liberalization fails to precipitate at the end of that time frame. Finally, the rationale for the compromises in question should draw on actual empirical evidence concerning what is and what is not conducive to peace, stability, and political justice under the relevant conditions. They should not, that is, rest merely on speculative psychological claims about what “traditional societies” may and may not be ready for at the present time.

As a suggestion about the form that such studies might take, it might be helpful to consider the recent work of Paul Collier and associates.[16] In opposition to the widespread assumption that democratization is intrinsically conducive to peace, Collier and associates have shown that in low-income post-conflict societies, democratization actually increases the likelihood of relapse into civil war. This is a remarkable finding. But the explanation for the finding is surely not, for instance, that these societies are not ready for democracy, or that democratization must emerge spontaneously from within the local culture itself if it is to take hold. Instead, a rather more plausible and concrete explanation is that rapid democratization drastically reduces a government’s ability to repress rebellion before such time as it has been able to properly address the issues that would typically provide incentives for rebellion. Further, Collier and Rohner take care to point out that these results are only “superficially troubling for the agenda of promoting democracy in low-income societies. […] democracy may still be highly desirable because of its intrinsic merits. An implication is that in low-income societies that democratize additional strategies may be needed to secure peace” (Collier and Rohner 2008, 533).

This sort of research provides an empirically informed perspective on the kinds of challenges that confront liberal peacebuilding. In no way does it purport to overthrow the discourse of liberal internationalism as such, so much as to point out that the order and timing of reforms is relevant to our prospects for a peaceful and just society. Such nuance is altogether missing from much of the current criticism of liberal peacebuilding. Even when these criticisms are sound and draw on empirical example, they do not offer an alternative to the liberal peace. They serve rather as reminders that building stable and just political institutions takes time, and that it would be naïve and counterproductive to seek to implement all the relevant reforms in one go.

endre.begby@gmail.com

REFERENCES

Agafonow, Alejandro. 2010. Human Security and Liberal Peace: Some Rawlsian Considerations. Public Reason 2(1): 77-84.

Begby, Endre and J. Peter Burgess. 2009. Human Security and Liberal Peace. Public Reason 1(1): 91-104.

Cabrera, Luis. 2001. Toleration and Tyranny in Rawls’s “Law of Peoples.” Polity 3(2): 163-79.

Collier, Paul. 2009. Wars, Guns, and Votes: Democracy in Dangerous Places. New York: Harper Collins.

Collier, Paul and Dominic Rohner. 2008. Democracy, Development, and Conflict. Journal of the European Economic Association 6(2-3): 531-40.

Collier, Paul, Anke Hoeffler and Måns Söderbom. 2008. Post-Conflict Risks. Journal of Peace Research 45(4): 461-78.

International Commission on Intervention and State Sovereignty. 2001. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty. Ottawa: The International Development Research Centre.

Martin, Rex and David A. Reidy. 2006. Introduction: Reading Rawls’s The Law of Peoples. In R. Martin and D.A. Reidy, Rawls’s Law of Peoples: A Realistic Utopia. Malden, MA: Blackwell Publishing.

Nussbaum, Martha. 2002. Women and the Law of Peoples. Politics, Philosophy, and Economics 1(3): 283-306.

Rawls, John. 1996. Political Liberalism. New York: Columbia University Press.

Rawls, John. 1999. The Law of Peoples, with “The Idea of Public Reason Revisited.” Cambridge, MA: Harvard University Press.

Tasioulas, John. 2002. From Utopia to Kazanistan: John Rawls and the Law of Peoples. Oxford Journal of Legal Studies 22(2): 367-96.

United Nations Development Programme. 1994. The 1994 Human Development Report: New Dimensions in Human Security. New York: Oxford University Press.

[1] Begby and Burgess 2009.

[2] Cf. Begby and Burgess 2009, 98, 100.

[3] Cf. Begby and Burgess 2009, 93.

[4] See, for instance, the 1994 Human Development Report and the 2001 report of the ICISS.

[5] Agafonow 2010.

[6] Agafonow 2010, 81.

[7] Cf. Rawls 1996.

[8] A different way of putting this point is that only “reasonable” views should be taken into account in the overlapping consensus. Bigoted views have no place there. By contrast, Agafonow speaks of the need to take into account “the specific kind of irrationalities that may be found in traditional societies” (Agafonow 2010, 81).

[9] Rawls 1999.

[10] Rawls 1999, 71-78.

[11] Cf. Rawls 1999, 62.

[12] Rawls 1999, 24, 62.

[13] For instance, it is compatible with decency that political office is restricted to members of a privileged group.

[14] Cf. Rawls 1999, 75, 110.

[15] For further remarks on the status of women in the Law of Peoples, see Nussbaum 2002; Tasioulas 2002, 384; Cabrera 2001, 174-75; Martin and Reidy 2006, 14-15.

[16] Cf. Collier and Rohner 2008; Collier, Hoeffler, and Söderbom 2008. A popular exposition can be found in Collier 2009.

© 2010 by Public Reason

Public Reason 2 (1): 27-42

Abortion and the Limits of Political Liberalism

Henrik Friberg-Fernros

University of Gothenburg

Abstract. In this article, I argue that laws permitting abortion are incompatible with political liberalism since such laws necessarily are dependent on beliefs or doctrines incompatible with other reasonable comprehensive doctrines. To demonstrate this I argue against two lines of defense for the compatibility between abortion and political liberalism. These two lines of defense are: (a) the agnostic position, according to which abortion are justified by reference to the uncertainty about on the status of the fetus and (b) the irrelevance position, according to which the rights of the woman to terminate the pregnancy override the rights of the fetus no matter whether or not the moral status of the fetus is considered as strong as the status of the woman. My conclusion is that both of these two lines of argument rest on beliefs or doctrines in conflict with other reasonable comprehensive doctrines. They are therefore in conflict with political liberalism. I finally discuss the implications for political liberalism given that my argument is sound. I conclude by arguing for a transformation of the duty to avoid conflicts with reasonable comprehensive doctrines to a mere ambition to avoid disputiveness as such.

Key words: political liberalism, abortion laws, John Rawls, comprehensive doctrines.

The question of whether or not laws permitting abortion are compatible with political liberalism is contested. John Rawls, the originator of political liberalism, seems to imply that they are since he considers a prohibition of at least early abortion unreasonable (Rawls 1993, 243-44 n. 32).[1] Consequently, laws permitting early abortions seem – at least – to be considered compatible with political liberalism according to Rawls. Several proponents of political liberalism support Rawls´s view.[2] Many theorists, however, also reject the compatibility between abortion and political liberalism. And the most common argument for this position is that a justification of abortions laws necessarily implies a position on the moral status of the fetus, which is dependent on one or another comprehensive doctrine and in conflict with others (Quinn 1997; Galston 1991; Greenawalt 1987). I will adhere to this position. My aim is to evaluate, and, in the end, reject two argumentative strategies to avoid taking a position on the moral status of the fetus. The first one can be labeled the agnostic position, according to which position on the moral status of the fetus is avoided by reference to the uncertainty about on the status of the fetus. This argumentation is employed by Judith Jarvis Thomson (1995) and most recently by Lawrence Torcello (2009). Considering the prominence of Thomson and the fact that Rawls refers to her article, her article has received surprisingly little attention, which is illustrated by the fact that Torcello does not refer to her even though his argument builds on hers. The second one can be labeled the irrelevance position, according to which a position on the moral status of the fetus is avoided by reference to the claim that the rights of the woman to terminate the pregnancy override the rights of the fetus even if the status of the fetus is considered as strong as the status of the woman. The status of the fetus is therefore irrelevant. To my knowledge, this strategy has not been used in order to argue for the compatibility between political liberalism and abortion, only to defend abortion normatively. The reasons for this are probably that this strategy rests on an conservative assumption (that the status of the fetus is considered as strong as the status of the woman during the whole pregnancy), which makes the case for abortion much more difficult to defend normatively than if this assumption was not accepted. To not only accept a conservative assumption about the status of the fetus as the starting point of the discussion, but also accepting the constraints of public reason may be considered as too hard which possibly explains the lack of previous research. But I will mainly consider this argument as a strategy to defend abortion under very certain circumstances like pregnancies caused by rape and when the pregnancy causes a threat to the life of the mother.

My aim is to reject these arguments for the compatibility between abortion laws and political liberalism without appealing to views that explicitly deny women the right to abortion in the first trimester. For the sake of the argument I follow Rawls in this regard and consider such views unreasonable, which means that it must be demonstrated that the conflict between the constraints of public reason and abortion laws are caused by other views than simply a conservative position on abortion. By adding this premise, the rejection of the arguments for the compatibility between abortion and political liberalism will not be dependent on questions whether or not a conservative position is reasonable, which in turn makes my argument more robust.

I. Public Reason and Abortion

According to political liberalism, political conceptions of justice must be presented independently from comprehensive doctrines of any kind (Rawls 1999, 143). We should not, says Rawls, justify political power with regard to “constitutional essentials and questions of basic justice” just by appealing to philosophical, ethical or/and religious comprehensive doctrines (1993, 215). In order to meet the requirements of public reason, such public power needs to be justified by political values, which “free and equal citizens might also reasonably be expected to endorse” (Rawls 1999, 140). Otherwise, the autonomy of citizens rejecting the comprehensive worldviews is threatened because political power – which is coercive in character – then restricts the life plan of those citizens by reasons they cannot apprehend (Weithman 2002, 201-2). To avoid this is, to quote Rawls “the liberal principle of legitimacy” (1993, 137).

But what does Rawls mean when he says that we should avoid dependence on comprehensive doctrines? To answer that question we first need to describe and define a comprehensive doctrine and then establish what a dependency on such a doctrine means. According to Rawls comprehensiveness is a matter of scope. A doctrine is comprehensive when “it includes conceptions of what is of value in human life, ideals of personal virtue and character, and the like, that are to inform much of our nonpolitical conduct (in the limit our life as a whole)” (Rawls 1988, 252). This definition of comprehensive conceptions fits, in particular, the major religious, ethical or/and philosophical traditions such as Catholicism, Utilitarianism and Platonism. Justifications in the public sphere, which depend on such comprehensive doctrines, will be in conflict with other doctrines and should therefore be avoided. By avoiding dependence on comprehensive doctrines an overlapping consensus in constitutional essentials and questions of basic justice is reachable.

However, as Rawls also recognizes, probably very few people possess a single coherent comprehensive view of life (Rawls 1993, 160). And certainly, by introducing the concept of partially comprehensive conception, Rawls narrows the scope of its application and makes space for a more loose articulation of its content (1993, 13). Nevertheless, Rawls still seems to consider the comprehensiveness per se as the core of the problem in relation to the principle of legitimacy. But I don’t see how this can be the case. The implication of that interpretation is that the criteria of public reason will not be applicable to more or less isolated beliefs. For example a belief in God does not necessary imply either a full or partial comprehensive view – even though this often may be the case.[3] Still it would be an unreasonable interpretation of the criteria of public reason to conclude that a dependence on such a belief in constitutional essentials and questions of basic justice would be permissible because of the lack of comprehensiveness.

Furthermore, consider the question of issue here, abortion. As I will argue below, proponents of political liberalism tend to place this issue within the realm of public reason, which in Rawlsian terms means that it belongs to “constitutional essentials and questions of basic justice”. Abortion must therefore be justified without being dependent on comprehensive doctrines. And, certainly, some justification of positions on abortion implies a dependence on comprehensive doctrines, but this is not necessarily the case. Take for example the position of those who argue that the personhood is constituted by brain waves (see, for example, Brody 1975). This position does not imply a comprehensive doctrine since this criterion does not “include conceptions of what is of value in human life, ideals of personal virtue and character, and the like, that are to inform much of our nonpolitical conduct”. Nor does it imply a partially comprehensive doctrine since such doctrines still “compromise a number of…non-political values and virtues” (Rawls 1993, 13). I cannot see that the criterion of brain waves compromises virtues of any kind and the scope of its application is restricted to the domain of issues of life and death. Regardless of its limited scope of application, this position of abortion is, as Francis Beckwith states, embedded in metaphysics of the human being (2001). And as such, this criterion is highly controversial, not least because of its (restrictive) consequences for the possibilities of abortion. As I noted above, Rawls contends that a comprehensive doctrine that leads to the exclusion of rights to abortion in the first trimester is unreasonable, which in turn means that abortion laws are permitted to be in conflict with such a view and still compatible with public reason. But this line of reasoning would not be applicable to conclusions about the permissibility of abortion if they were drawn from isolated beliefs or from systems of beliefs narrower than comprehensive doctrines. In other words: the implication of the fact that Rawls – and others after him – define the problem in terms of comprehensiveness is that the constraints imposed by public reason are not applicable to isolated beliefs or narrower system of beliefs. My point is that this implication is unacceptable from the point of view of the liberal principle of legitimacy. It does not matter whether or not the conclusions are drawn from comprehensive doctrines, or from a narrower system of beliefs or even from isolated beliefs – if the conclusions are drawn from premises which citizens cannot reasonably be expected to endorse, the autonomy is threatened.

The central question for liberal legitimacy is consequently whether or not conclusions justifying public power in constitutional essentials and questions of basic justice are based on premises which citizens reasonably can be expected to endorse. But what are the criteria for reasonable endorsable premises in constitutional essentials and questions of basic justice? At a minimum, such premises should not be irreconcilable with reasonable beliefs and doctrines held by the citizens since it would be unreasonable to expect citizens to endorse premises in conflict with their own reasonable beliefs and doctrines. To examine the compatibility between abortion and political liberalism, which is the task of my paper, one therefore needs to answer the question whether or not abortion can be justified without being dependent on premises irreconcilable with reasonable beliefs and more or less comprehensive reasonable doctrines of the citizens. However, in this regard I will follow Rawls and focus on reasonable comprehensive doctrines rather than reasonable beliefs. This choice is certainly not unobjectionable. It can be argued, as Gerald Gaus does, that a focus on exclusively reasonable doctrines at the expense of reasonable beliefs can be considered arbitrary and discriminating (1996). However, it is sufficient for my purposes to demonstrate the incompatibility between abortion and comprehensive reasonable doctrines since it is uncontroversial from the point of view of political liberalism that justifications of public power should not be in conflict with reasonable comprehensive doctrines. According to Rawls, the political conception of justice should be like a module that fits into reasonable comprehensive doctrines (1993, 12). At best, those doctrines should support the political conception of justice, but even if this must not necessarily be the case, to uphold the liberal principle of legitimacy, the political conception of justice should at least not be in conflict with reasonable comprehensive doctrines.

To be able to examine the compatibility between reasonable comprehensive doctrines and abortion, a definition of the former is of course necessary. As Peter Jones notes, somewhat surprisingly Rawls defines the reasonableness of doctrines differently than he defines the reasonableness of persons (1995, 526). According to Rawls, reasonable comprehensive doctrines have three general characteristics (1993, 59). James Boettcher summarizes them in the following manner:

First, as an exercise of both theoretical and practical reason, reasonable comprehensive doctrines coherently address the major philosophical, theological and moral concerns of human beings. Second, each doctrine organizes and weighs values, including non-political values, in a particular fashion. Finally, comprehensive doctrines are usually tied to a tradition of thought so that they tend to develop slowly, remaining stable over time (2004, 607).

In contrast, reasonable people are defined in terms of virtues of persons. Reasonable people are characterized by willingness to both propose and honor fair terms of cooperation and to recognize the burden of judgment. The latter implies an acceptance of the claim that pluralism is a permanent feature of a free society. The definition of a comprehensive doctrine is quite undemanding; as Brian Barry argues it can probably be interpreted as meaning that doctrine should be considered as reasonable unless otherwise is proven (1995, 897). Considering this, it is quite uncontroversial to define those doctrines which I will refer to in this article as reasonable.

However, much more interesting is to consider the fact that a reasonable doctrine can be interpreted in an unreasonable way (Rawls 1993, 60 n. 14). This will be the case if the virtues of reasonable persons are not practiced. Applied on the abortion issue, it is sometimes argued that an interpretation of Catholicism according to which women are denied rights to abortion in the first trimester conflicts with the conditions of a reasonable interpretation of an otherwise reasonable doctrine.[4] Since it is a matter of dispute whether or not an interpretation according to which women are denied the right to abortion in the first trimester is reasonable or not, I will for the sake of the argument assume that such an interpretation is unreasonable. Consequently it will not be sufficient to demonstrate the incompatibility between abortion and interpretations of doctrines stating that abortion should be prohibited in the first trimester; rather the incompatibility between abortion and obviously not unreasonable interpretations of doctrines must be demonstrated. Of course I will not be able to test the compatibility between abortion laws and reasonable comprehensive doctrines in an exhaustive way; it is only necessary to demonstrate the incompatibility between abortion laws and at least one reasonable comprehensive doctrine.

II. The Agnostic Position

Rawls does not make a lot of comments on abortion specifically, but in a quite famous note in Political Liberalism he singles out three political values with relevance to abortion: “the due respect for human life, the ordered reproduction of political society over time, including the family in some form, and finally the equality of women as equal citizens”. These values are political and not metaphysical because they are considered independent from comprehensive doctrines. A reasonable balance of these three political values will, says Rawls, “give a woman a duly qualified right to decide whether or not to end her pregnancy under the first trimester” (1993, 243 n. 32). Since this conclusion about the abortion rights is claimed to be derived from a purely political value, the abortion rights should, according to this line of thought, be considered as exclusively political. However, he does not present any argument for why his position evades dependence on comprehensive views. Following Philip L. Quinn (1995), it must therefore be concluded that he is not able to show how this balance is justified within the scope of public reason. However, when commenting abortion in a later text, Rawls refers to Judith Jarvis Thomson’s article “Abortion” in Boston Review (1995) for a “more detailed interpretation” of those values “when properly developed in public reason” (Rawls 1999, 169 n. 80). To make Rawls’ argument complete one must thus turn to her article.

It is important to note that Thomson’s article is not explicitly occupied with political liberalism. However, the way Rawls refers to her makes it reasonable to assume that he considers her argument as being at least compatible with the requirements of political liberalism.[5] Thomson defends abortion rights not primarily by arguments about the lack of moral status of the fetus. On the contrary, she finds no conclusive reasons for denying that fertilized eggs have a right to life and therefore, consequently, no conclusive reason for denying that abortion is a violence of those rights. But this position does not lead her to conclude that women should be denied abortion rights. This is because there are at the same time no conclusive reasons for giving fertilized eggs a right to life and a protection from abortion. Her conclusion is thus that neither side has proven its case.

If there is no conclusive reason either to deny or to give fertilized eggs the right to life, how could one then defend women’s right to have an abortion? Thomson argues here that the lack of conclusive proof of either side leads to the conclusion that the side whose position implies an imposition of force has to lose because it constrains the liberty of women. Women should not be constrained to exercise self-determination when there are no conclusive reasons for it at hand. She argues that such constraints would impede the equality of women (Thomson 1995, 15).

My aim here is not to challenge Thomson’s view normatively,[6] but rather to test whether or not her reasons for permitting abortion is compatible with the demands of public reason. According to my interpretation public reason are not allowed to be in conflict with reasonable comprehensive doctrines. For the sake of the argument I previously assumed that an interpretation of a doctrine which denies a qualified right to abortion during the first trimester is unreasonable. In order to demonstrate the incompatibility between Thomson’s argument and political liberalism, I consequently have to show that her argument is in conflict with other doctrines than those which proscribe a conservative position. And it is obvious that this it the case. Her agnostic view on the moral status of the fertilized egg is namely not only in conflict with conservative positions but also with liberal approaches to the status of the human embryo.[7] This is the case since she – in contrast with the liberal view - rejects the conclusiveness of denying fertilized egg a right to life. That also means that her agnostic argument differs from the Rawlsian “method of avoidance”. The method of avoidance calls us to refrain from engaging in metaphysical issues when justifying principles of justice (Rawls 1987, 12). It is by applying the method of avoidance that a political conception of justice can be as a module that fits into and can be supported by different doctrines (Rawls 1993, 12). For example, one could argue that certain human rights could be justified without references to specific ethical doctrines, which mean that those rights are compatible with a wide range of doctrines. Therefore, one could defend human rights and still avoid taking positions on ethical doctrines. Thomson, however, does not apply this method since she does not refrain from taking positions on doctrines when she declares that there are neither conclusive reasons to deny nor to give fertilized eggs rights. Consequently she explicates the arguments for the conservative, as well as the liberal approach to the status of human embryo, refutes them eventually, and therefore comes to an agnostic conclusion, which in turn clears the way for her pro-choice position about abortion. In contrast, the arguments for fundamental human rights do not spring from such a doctrinal divergence, but rather the reverse.

The limitation of Thomson’s argument in relation to the criteria of public reason raises the question about one other possible way to argue for abortion rights. Namely, whether or not agnosticism about the moral status of the fertilized egg and the fetus could be defended without claims about the inconclusiveness of available positions. This line of defense for abortion is recently pretty much employed by Lawrance Torcello (2009). According to him, there is a precautionary argument for permitting abortion:

In most cases, abortion is considered from the perspective of an actual woman with all of the moral status that comes with non-controversial personhood. The precautionary argument dictates that in the absence of certainty, the default position should be that of caution. When dealing with a decision between the freedoms of choice and consciousness belonging to an actual woman as opposed to the uncertain moral status of a fetus gestating in her body, the most cautious option is to honor the physical and mental integrity of the woman and her best judgments regarding her own interests. This position requires the least amount of comprehensive assumptions (2009, 26).

The similarity between Torcello’s and Thomson’s argument is obvious – even though she does not conceptualize her argument in terms of a precautionary principle. Still the essence of their arguments is the same: the uncertainty of the status of the embryo and the early fetus makes it unjustified to constrain the possibilities for at least early abortions. However, there is one important difference: while her arguments for abortion rights are based on a refutation of the conclusiveness of the liberal as well as more conservative approach, his arguments for abortion rights are based on a judgment of the comprehensiveness of the two positions. And since the liberal position “requires the least amount of comprehensive assumption” women should be given abortion rights. The question is consequently whether this line of argument is compatible with political liberalism. I would argue that it is not. First of all, it can be noted that his “comparative approach”, according to which the liberal view needs lesser amount comprehensive assumption than the conservative view, cannot sufficiently justify abortion rights according to the Rawlsian version of public reason. To be justified in this way, it is not sufficient for abortion rights to be justified in a less comprehensive way than what would be the case of a more restrictive position on abortion. Abortion rights need to be justified in a way that totally avoids dependence on comprehensive doctrines. That is the goal of the Rawlsian “method of avoidance” – a goal which Torcello does not reach with his argumentation.

However, as I have argued previously in this article, the decisive point of view should be whether or not abortion laws are in conflict with reasonable comprehensive views. The question is consequently whether or not Torcello’s position is in conflict with such views. I assumed for the sake of the argument that doctrines proscribing a conservative view on abortion are not reasonable. The question is consequently whether Torecello’s position is in conflict with other doctrines than those proscribing conservative positions. I think it is obvious that this is the case. Arguing for agnosticism of the status of the fetus and the permissibility of abortion during the whole pregnancy his position is not only in conflict with conservative positions but also with positions sometimes called “moderate” or “gradualist” (see for example Alward 2007; Tsai 2005). According to this position, an unborn human being gradually becomes a person during the pregnancy, which also means that the protection of the fetus also is gradually prioritized. Abortion in the early stages of the pregnancy is according to this view considered morally permissible while the normative case for restriction becomes stronger as the pregnancy proceeds. This gradualist or moderate position is doctrinally integrated in for example religious traditions which take a position on abortion without adhering to either the conservative or the liberal position (Tsai 2005).[8] Since Torcello’s agnostic position – according to which the uncertainty of the status of the fetus makes abortion on demand permissible until birth – is in conflict with this gradualist position, Torcello´s position is incompatible with political liberalism.

The premises of inferences for abortion rights within the limits of political liberalism so far discussed have been a stipulated agnosticism. In the case of Thomson’s argument, this agnosticism was an implication of her claim about the inclusiveness of the liberal as well as the conservative position on the moral status of a fertilised egg while Torcello’s agnosticism is more taken for granted. Nevertheless, both of these two lines of argument for abortion rights are incompatible with political liberalism. More specifically, the mere claim of the inclusiveness of the liberal position by Thomson is incompatible with political liberalism. In the case of Torcello’s argumentation, his liberal position – according to which abortion should be permissible during the whole pregnancy – is in conflict with not only conservative positions on abortion but also wish so called moderate or gradualist ones. Abortion laws may, however, be justified independently of the status of the fetus, which means that premises about the status of the fetus will be irrelevant. This is in fact pretty much what Judith Jarvis Thomson does in her earlier article A Defense of Abortion, when she argues for the permissibility of abortion even if the fetus has a right to life. I will now turn to this line of Thomson’s reasoning.

III. Irrelevance Position

To be independent of positions of the status of the fetus Judith Jarvis Thomson takes as her point of departure in A Defense of Abortion the premise that the fetus is a person from the moment of conception (Thomson 1971, 48). If abortion can be justified despite this premise, then abortion can be justified regardless of the status of the fetus. The dependence on beliefs about the (low) moral status of the fetus will thus be eliminated. This in turn means that one obstacle to making abortion compatible with comprehensive doctrines compromising a view on the status of the fetus will be overcome. However, obviously this move cannot justify an unqualified right to abortion according to political liberalism. That is so because this line of defense of abortion assumes that the fetus is a person with a right to life. And it would certainly be in conflict with many comprehensive doctrines to claim that an existing right to life does not entail any protection from actions analogously with an abortion. The question is rather whether there are any situations in which such protection may be removed without being in conflict with reasonable comprehensive doctrines. To be able to answer that question, we need to identify situations when the reasons for abortion are as strong as possible. If the argument does not succeed in these situations, there is no reason to believe that it will work at all. Two situations will be considered here: a pregnancy as a result of a rape and when the life of the mother is threatened by the pregnancy. But before this can be done we need to summarize Thomson’s argument.

The beginning of Thomson’s argument is well known (1971, 48-49). She asks you to imagine that a person, a famous violinist, is being involuntarily plugged into your body because his kidneys are not working. Thanks to this intervention, your kidneys can be used to extract poison from his blood as well as yours. The situation needs to last for nine months before you are free to unplug yourself. However, if you unplug the violinist before the nine months have passed, he dies. Thomson contends that you have the right to unplug the violinist because you did not agree to being plugged even if you know unplugging would result in his death. Analogously she also contends that a woman whose pregnancy is the result of an involuntary intercourse has the right to abortion. She also argues that you have the right to unplug the violinist if your kidneys are being damaged because of the arrangement. Analogously, the woman should have the right to abortion if the pregnancy threatens her life (1971, 52). The question is whether or not this defense can justify abortion within the limits of political liberalism when the pregnancy is the result of a rape or is threatening the life of the mother. In other words: is it possible to justify abortions in these situations without conflicting reasonable comprehensive doctrines? I think the answer is no. And the reason why is that such justification will either be supported by or in conflict with two principles or doctrines deeply embedded in moral theories on human action. These two principles are the doctrines of doing and allowing and of double effect. My aim here is to demonstrate the following: firstly that a position on these two doctrines is unavoidable in taking a position on abortion when the life of the mother is threatened by the pregnancy or when the pregnancy is the result of rape; and secondly, that the space for abortions in these two circumstances is determined by the positions taken on these two doctrines.

The doctrines of double effect and of doing and allowing become relevant when our aim to promote good causes serious harm (Quinn 1989; McIntyre 2004). According to the principle of double effect actions with bad consequences can be permitted if these consequences are foreseen rather than intended. Granting that the abortion will result in the death of an innocent person with a right to life, this is obviously a bad consequence. For those adhering to moral theories accepting the principle of double effect the death of the person consequently must be only foreseen and not intended (McIntyre 2004). Those adhering to the doctrine of doing and allowing doctrine ascribe moral significance to the distinction between killing and allowing to die. They consider killing more objectionable than letting die. Therefore, it may be justified to let an innocent person die while it is prohibited to kill him/her (Howard-Snyder 2002). Consequently, according to this doctrine, the death of the fetus must only be allowed and not caused by an act of killing. Now I find it rather obvious that these two doctrines are relevant in relation to the situations considered here, i.e., when the pregnancy threatens the life of the mother and when the pregnancy is caused by a rape. The aim is to promote good by terminating an involuntary pregnancy and eliminate a deadly threat against the woman respectively, and, granting that the fetus is a person with a right to life, this course of action will obviously cause harm. Either the moral significance of the distinctions between doing and allowing and between intended and unintended effects are acknowledged or they are refuted. Of course it is possible to remain agnostic about them, but as soon as the space for abortion needs to be specified (which necessarily would be the case when an abortion law is to be legislated) a position for or against these doctrines would be unavoidable. In other words: a conclusion about the space for abortion in the two circumstances discussed above implies a position on these doctrines.

Consequently when an abortion law covering the abovementioned circumstances is to be legislated either these distinctions will be recognized, which implies stronger limitations on how and under which circumstances an abortion is allowed than the case would be if these distinctions were not recognized. The difference is probably most obvious with regard to the doctrine of double effect. According to the most orthodox version of this principle, the following criteria must be fulfilled:

1. that the action in itself from its very object be good or at least indifferent;

2. that the good effect and not the evil effect be intended;

3. that the good effect be not produced by means of the evil effect;

4. that there is a proportionately grave reason for permitting the evil effect” (Mangan 1949, 43).

I think it is obvious that the space for an action (in this case an abortion) would be more limited if these conditions are considered than if they are not. Certainly, there are different versions of the doctrine of double effect, but no matter how “thin” they may be, all versions of the doctrine of double effect imply some constraints on the course of action, which means that it makes a difference whether or not this doctrine is applied. This would also be the case with the doctrine of doing and allowing. As Anton Tupa in a recent article claims: albeit it is “quite complicated” to determine what constitutes killing and letting die, still “…some methods of abortions clearly involve killing the fetus – this much is not controversial” (2009, 3). Recognizing the distinction between allowing and doing – or in this case – between killing and letting die – implies consequently that all methods of abortions involving killing are impermissible.

The disagreement over the status of the doctrines of double effect and of doing and allowing makes it impossible to avoid conflicts with comprehensive doctrines in justifying abortion granting that the fetus is a person with a right to life. Certainly, it is possible to find a consensus about the permissibility of abortion when the life of the mother is in danger and in case of pregnancy as a result of rape respectively, but different stances on those doctrines determine the limitations of this opportunity. The acceptance of these two doctrines limits the possibilities for abortion substantially compared to what the case would be if these were rejected. So even if it were possible to reach a consensus about the permissibility of abortion in these two cases, disagreements about the status of these doctrines will still make conflicts with comprehensive doctrines unavoidable when the specific content of the law is outlined. Consequently, even in case the pregnancy is a result of rape or when the pregnancy is threatening the life of the mother, an abortion law would be incompatible with political liberalism. Depending on what position is taken on the doctrine of double effect and of doing and allowing either the law would be considered as unjustified limited or unjustified permissible.

IV. Implications

If my argument about the incompatibility between political liberalism and abortion laws is sound, the implications are more problematic to political liberalism than to abortion laws. This is so because the compatibility with comprehensive reasonable doctrine is more central to those defending political liberalism than to those defending abortion laws. Therefore, I will concentrate on the former. According to the interpretation made initially in this article, the essence of the criterion of political liberalism is to avoid dependence on beliefs which citizens not reasonably can be expected to endorse. That implies that abortion laws, at a minimum, must be justified without being in conflict with reasonably comprehensive doctrines. Rawls therefore stipulates that the duty of civility commands us to justify political power in “constitutional essentials and questions of basic justice” without dependence of comprehensive doctrines (1993, 154-55). However, given my initial interpretation of Rawls, this means that the duty of civility does not only apply to comprehensive doctrines but also to beliefs which citizens not reasonably can be expected to endorse.

But what if this scope of public reason is too limited to justify abortion laws? Considering the arguments I make here as well as arguments put forward of others regarding the incompatibility between restrictive abortion law and political liberalism, such a conclusion seems close to inevitable. At least it remains for those who disagree to prove their case. If this cannot be done, the consequences for political liberalism are quite serious. Since it is reasonable to assume that political liberalism endorses the Kantian maxim that “should” implies “can”, the mere uncertainty about the possibilities to actually settle constitutional essentials and questions of basic rights within the scope of public reason, undermines the legitimacy of the duty of civility. In other words: it would be gravely unreasonable to endorse this duty when it is uncertain whether or not it can be fulfilled.

On a general level, there are two ways of handling the implication of the uncertainty regarding the possibility to fulfill the duty of civility. One way is simply to remove abortion from constitutional essentials and questions of basic justice and the other way is to modify the duty of civility.

By removing the abortion issue from constitutional essentials and questions of basic justice it would be possible to depend on reasonably disputable beliefs in justifying abortion laws since the criteria of the Rawlsian version of public reason only applies to constitutional essentials and questions of basic justice (Rawls 1993, 215). However, this move will be in conflict with Rawls’s as well as many other liberals’ inclination to locate the question of abortion within public reason (Rawls 1999:169; Macado 2000; Dworkin,1992; Thomson 1995, Audi 2000; Gutmann and Thompson 1990). This inclination is, I think, very reasonable from the perspective of political liberalism. Removing the abortion issue from public reasoning would, for example, open up for legislations based on comprehensive doctrines like Catholicism or Utilitarianism. The implication of this would be that legislations on abortion theoretically could vary from a total prohibition of abortion one term to an acceptance of abortion during the whole pregnancy (and of killing infants after birth) the next term. I think many proponents of political liberalism would consider such implications very problematic since the very aim of political liberalism is to secure legitimacy of political order and, in the end, the stability of a well-ordered society. And this aim would be hard to reach, one could argue, if questions like abortion were unconstrained by the criteria of public reason.

Considering the negative consequences of removing abortion from “constitutional essentials and questions of basic justice”, it seems plausible from the perspective of political liberalism to try reconciling “solutions” to the abortion issue with criteria of public reason. But such reconciliation must, if my arguments are warrant, be preceded by a modification of public reason because of the uncertainty regarding the possibility to fulfill the duty of civility. As far as I can see there are here also two ways to do this. One way is to weaken the obligation to be independent of reasonably disputed beliefs. The other way is to keep the status of the obligation unchanged, but to adopt a more inclusivistic approach to beliefs. Given the impossibility to discuss these two ways of reconciling abortion laws with political liberalism exhaustively, I will only comment on the former one since I find this way more promising than the latter one.[9]

One way to weaken the obligation to avoid conflicts with comprehensive doctrines is to transform this obligation into a mere goal or a prima facie duty. Such a transformation would make the avoidance of conflicts with comprehensive doctrines in constitutionals essentials and questions of basic justice desirable but not mandatory. By doing this, political liberalism obviously confirms to the principle that “should implies can”. According to this revised criterion of political liberalism it may then be acceptable to rest on beliefs or doctrines in conflict with comprehensive doctrines in order to reach a settlement in very polarized issues, where no plain truths widely accepted are to be found.[10]

One objection to the strategy to transform the obligation to avoid conflicts with comprehensive doctrines to a mere ambition or prima facie duty is that public reason then would be too unconstrained to secure the stability and legitimacy of political order. Applied to the abortion issue, the consequences would be the same as the previously discussed consequences of the strategy to solve the problem of the uncertainty regarding the possibility to fulfill the duty of civility by removing the abortion issue from “constitutional essentials and questions of basic justice”. By removing the abortion issue from this category, political solutions to the issue of abortion would be unconstrained by the criterion of public reason, which in turn, as I argued before, would open up for dependence on very controversial doctrines like Catholicism and Utilitarianism. According to this objection, the same would be the case if this weak criterion was adopted. Since no plain and widely accepted truths can be found in the abortion issue, reasoning in the political sphere is, according to this criterion, allowed to be dependent on some comprehensive doctrines (like Catholicism and Utilitarianism) and in conflict with others. And, as I argued before, from the point of view of political liberalism, this fact should be seen as an unacceptable threat against the stability and legitimacy of political order.

According to the above mentioned objection, the consequences of making the obligation to avoid comprehensive doctrines to a mere ambition will open up for any beliefs – no matter how controversial it may be. However, this consequence is not an entailment of the strategy to weaken the constraints of public reason. As I argued previously the central question for liberal legitimacy is whether or not conclusions justifying public power in constitutional essentials and questions of basic justice are based on premises which citizens reasonably can be expected to endorse. And for moral reasons it seems reasonable to expect the possibilities for endorsements to vary with the level of disputivness of these premises. The more disputable the premises are, the stronger are the moral reasons to oppose them. Therefore, one could reformulate the goal to not only avoid disputable beliefs or doctrine in general but to avoid disputivness as such. Such reformulation would imply that some certainly reasonably disputable beliefs nevertheless are more disputable than others. A statement that the earth is flat is for example more disputable than the statement that aliens exist even though both statements are reasonably disputable. Consequently, a criterion which stipulates a duty to try to avoid disputivness as such favours less reasonably disputable beliefs compared to more disputable beliefs.[11] That means that public reason still will be constrained.

henrik.friberg-fernros@pol.gu.se

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Steinbock, Bonnie. 2006. The Morality of Killing Human Embryos. The Journal of Law, Medicine & Ethics. 34 (1): 26-34.

Sunstein, Cass. 1996. Legal reasoning and political conflict. Oxford: Oxford University Press.

Snyder-Howard, Frances. 2002. Doing vs. Allowing Harm. Stanford Encyclopaedia of Philosophy. http://plato.stanford.edu/entries/doing-allowing/ (accessed June 14, 2010).

Thomson, Judith Jarvis. 1995. Abortion. Boston Review 20 (3): 11-15.

Thomson, Judith Jarvis. 1971. A Defense of Abortion. Philosophy and Public Affairs 1 (1): 47-66.

Torcello, Lawrence. 2009. A Precautionary Tale: Separating the Infant from the Fetus. Res Publica 15 (1): 17-31.

Tsai, D F-C. 2005. Human Embryonic Stem Cell Research Debates: A Confucian Argument. Journal of Medical Ethics 31: 635-640.

Tupa, Anton. 2009. Killing, Letting Die, and the Morality of Abortion. Journal of Applied Philosophy 26 (1): 1-25.

Weithman, Paul. 2002. Religion and the Obligations of Citizenship. Cambridge: Cambridge University Press.

[1]I would like to thank Paul Weithman, Daniel Engster, Lennart J. Lundqvist, and Göran Duus-Otterström for helpful comments on earlier drafts on this paper.

Even if this position was modified in a later article (Rawls 1999, 169 n. 80), I will argue that this modification cannot be interpreted as if Rawls abandons his former position. In the later article “The Idea of Public Reason Revisited” Rawls’ position still seems to imply that denying the right to abortion is “unreasonable” and therefore not in accordance with public reason (1999, 170). For a similar interpretation of Rawls, see Dombrowski 2001, 127.

[2] See for example Macado 2001; Schwartzman 2004; Thomson 1995; Torcello, 2009.

[3] This example is taken from Gaus 1996, 263.

[4] See for example Dombroski 2000, 129-30. Rawls seems to take the same position, see 1993, 243 n.32.

[5] It can be noted that even though he refers to Judith Jarvis Thomson article, he states that he “would want to add several addenda to it” (Rawls 1999, 169 n. 80). But although he seems to consider her article incomplete, I think it reasonable to expect it to be compatible with political liberalism since he refers to it.

[6] For this, see Beckwith 2004.

[7] For an overview of these approaches, see Steinbock 2006.

[8] This position is in conflict not only with conservative abortion laws but with abortion laws in general since almost any abortion law in the world limits the access to abortion in the later phases of the pregnancy – only Canada, China, Vietnam and North Korea have no further time limit for abortion (Rahman et al.1998). However, it may be hard to identify a specific comprehensive doctrine behind these laws.

[9] The problem with the latter one is to find a criterion that in a justified way broadens the scope of public reason to embrace doctrines and beliefs at a level high enough to settle questions like abortions but still exclude not reasonably endorsable claims that threaten the legitimacy and stability of the liberal society. For example, it seems at least disputable if the exclusion of religious argument can be justified; see Eberle, 2002 and Gaus 2009.

[10] For a similar conclusion, see Lott 2006.

[11] The method of avoiding disputiveness as such is related to ideas of convergence like John Rawl’s overlapping consensus (1993), Amy Gutmann’s and Dennis Thompson’s economy of moral disagreement (1995) and Cass Sunstein’s incompletely theorized agreements (1996). However, the method of avoiding disputiveness as such is a less demanding idea since it primarily not aims to establish convergences but rather to decrease divergences.

© 2010 by Public Reason

Public Reason 2 (1): 43-60

Anti-paternalism and Invalidation of Reasons

Kalle Grill

Uppsala University

Abstract: I first provide an analysis of Joel Feinberg’s anti-paternalism in terms of invalidation of reasons. Invalidation is the blocking of reasons from influencing the moral status of actions, in this case the blocking of personal good reasons from supporting liberty-limiting actions. Invalidation is shown to be distinct from moral side constraints and lexical ordering of values and reasons. I then go on to argue that anti-paternalism as invalidation is morally unreasonable on at least four grounds, none of which presuppose that people can be mistaken about their own good: First, the doctrine entails that we should sometimes allow people to unintentionally severely harm or kill themselves though we could easily stop them. Second, it entails that we should sometimes allow perfectly informed and rational people to risk the lives of themselves and others, though they are in perfect agreement with us on what reasons we have to stop them for their own good. Third, the doctrine leaves unexplained why we may benevolently coerce less competent but substantially autonomous people, such as young teens, but not adults. Last, it entails that there are peculiar jumps in justifiability between very similar actions. I conclude that as liberals we should reject anti-paternalism and focus our efforts on explicating important liberal values, thereby showing why liberty reasons sometimes override strong personal good reasons, though never by making them invalid.

Key words: anti-paternalism, invalidation, Joel Feinberg, liberty, reasons.

In his argument against paternalism, Joel Feinberg states at one point that the anti-paternalist “must argue that paternalistic reasons […] are morally illegitimate or invalid reasons” (1986, 25-26). In this article, I will develop an account of what if might mean that a reason is invalid on moral grounds in this sense, or invalidated, as I will call it. I will then go on to present four arguments against invalidation in the context of anti-paternalistic doctrines, and by implication against invalidation in general.

I will be concerned with the principled or deontological understanding of anti-paternalism, which tells us to disregard certain reasons as a matter of moral requirement, rather than of practical expedience. There are often practical reasons to disregard certain reasons: Lack of time or information, risk of mistake, social coordination mandating a division of responsibility, and so on. Feinberg addresses his anti-paternalism to “an ideal legislator” and claims to be on “a quest not for useful policies but for valid principles.” (1984, 4) I take it that it is on this ideal, general or abstract level that reasons can be invalidated, as opposed to excluded for practical reasons.[1] Though practical considerations and more principled arguments have as a rule been intertwined in the discussion on paternalism since Mill set the standard with On Liberty, I find it preferable to keep them separated. We can fruitfully discuss paternalism either in the abstract or in some concrete situation or institutional setting. Anything in between is likely to fail both to account for the normative core of the problem and to provide action guidance.

Feinberg oscillates between understanding paternalism on the one hand as the counting of certain reasons as good and valid reasons for limiting liberty (as in the quote in the first paragraph of this section), and on the other as limitations of liberty with a certain (implicit) rationale. Though the latter understanding is dominant in contemporary discussion of paternalism, I believe the former is the most promising for the anti-paternalist. It is less ambitious to oppose certain reasons for limiting liberty, than to oppose certain actions or policies because they limit liberty and are supported by certain reasons.[2]

Feinberg’s uncompromising defence of anti-paternalism on moral grounds is unusual. The standard approach to paternalism among contemporary authors is to assume anti-paternalism as a general rule and then propose exceptions to this rule. These exceptions may invoke hypothetical consent (e.g. Van De Veer 1986, 88), avoidance of great harm (e.g. Groarke 2002) or the common-sense reasonableness of preventing significant harm at limited cost to liberty (e.g. Beauchamp and Childress 2001, 185-91). There has been a lack, however, both of detailed analysis of principled anti-paternalism and of more comprehensive arguments against it. This may be due to the strong focus on practical and political circumstances and to the perceived need to decide which actions and policies are rightly called paternalistic. Recently, some authors have presented more head on critiques of anti-paternalism, most noteworthy Richard Arneson (2005) and Peter de Marneffe (2006). With this article, I hope to join that effort and take it one step further.

I will focus mainly on Feinberg’s absolutist understanding of anti-paternalism according to which all paternalistic reasons are invalid. I will also, however, consider moderate versions according to which paternalistic reasons are discounted rather than invalidated, or where exceptions are made for certain types of paternalistic reasons. Throughout I discuss moral reasons. Reasons that are invalidated as moral reasons may possibly remain valid as reasons of some other sort (e.g. prudential).

Three of my four arguments are based on the fact that anti-paternalism necessarily only applies to sufficiently voluntary action. This, I argue, leads to wrong conclusions in some cases, to peculiar jumps in justifiability, and to an unwarranted disregard for the liberty of those whose actions are, according to the doctrine, insufficiently voluntary. The remaining argument is based on the fact that we can have decisive reasons to interfere with a person who is acting perfectly voluntarily, and she can accept these reasons fully as far as they concern her, yet anti-paternalism unreasonably entails that these reasons are invalid. All of my arguments concern the peculiar effects of invalidation per se. None of them depend on people being mistaken about their own good. Though I happen to believe that people can be so mistaken, I will assume throughout, for the sake of argument, that we should accept people’s views of their own good at face value.

I. Anti-paternalism as invalidation

I take it for granted that if an action protects or promotes some person’s good (more than alternative actions) that is normally a valid reason for that action. I will from now on call such reasons personal good reasons rather than paternalistic reasons, since they can be invoked for actions that do not limit liberty and since, strictly speaking, reasons as such cannot be paternalistic. Personal good reasons may concern such things as a person’s health, prosperity, achievement, happiness, or long-term autonomy. I will not be concerned with what exactly is good for a person, but rather, as already stated, assume that her own view on this matter should be accepted. Neither will I make a distinction between protection and promotion of good – that is between preventing harm and providing benefit. If the reader thinks that such a distinction is warranted, she may read my argument as concerning harm-prevention.

Anti-paternalism is, on my understanding, a doctrine of invalidation. We may describe invalidation as the blocking of a reason from influencing the moral status of an action (forbidden, permissible, obligatory etc.) and so what we ought to do (not do, may do etc.). To influence an action’s moral status is, I take it, to have weight on the scales, to figure among the factors that should be considered when forming an all things considered judgement (under ideal conditions). A reason may have influence in this sense even if it is ultimately overridden by other reasons. We could say with John Broome (2004) that the reason figures in a “weighing explanation” of an ought fact. However, while Broome says that deontic principles replace weighing explanations (making them merely potential), I propose that some deontic principles operate by regulating the weighing, for example by making certain reasons invalid, banishing them from the scales. The picture of reasons on the scales is of course metaphorical. I admit that I do not have a theory of how exactly to derive an all things considered judgment from a set of valid reasons. I can only say, with Broome, that such a judgment should be based only on consideration of the strengths of the relevant reasons (or more Broomian – ought facts are determined by the aggregated weights of the relevant reasons) (37-38).

Invalid reasons are normatively impotent and in that sense not reasons at all. This presents a terminological problem. On the one hand, we are very tempted to talk, like Feinberg, of invalid reasons. On the other hand, it is a widespread position that the term reason should be reserved for valid reasons, for reasons with influence (e.g. Scanlon 1998, 156; Kamm 2006, 237; Parfit Manuscript). Philosophers sometimes disagree on what we should do, or at least why we should do it, though they agree on what is important. For example, non-consequentialists typically agree with hedonistic utilitarians that the fact that an action will alleviate suffering is a relevant consideration in a sense that most other consequences are not, even if they hold that this consideration does not always provide a reason for action. So for example, Thomas Scanlon (1998) in his critique of a morality based on wellbeing readily admits: “It would be absurd to deny that well-being is important” (141). Since in the present context the very object of investigation is whether apparent reasons are valid reasons, I find it preferable to use “reason” for all considerations that are relevant in this wide sense. A reason’s strength is the influence it would have if it were valid.[3] I find that this terminology clarifies the role of deontic constraints on moral reasoning, for example the constraints of anti-paternalism, and so one important difference between consequentialism and non-consequentialism.

Principles or doctrines of invalidation can be placed within a larger family of influence-regulating doctrines – doctrines that strike a wedge between the strength of a reason and its influence. The most widely recognized form of morally based influence-regulation is side constraints (introduced by Robert Nozick (1974) in the context of rights), or, in other words, absolute reasons. An absolute reason entails that an action should or should not be done, irrespective of other reasons.[4] This a priori-like property of a reason entails that other reasons have no influence – they should be disregarded. As a relationship between reasons, invalidation is distinct from and weaker than the relationship between absolute and non-absolute reasons, since it entails only that some reason(s) have no influence, leaving other reasons to potentially override the invalidating reason. In fact, absolute reasons can be defined as reasons that invalidate all other reasons, with invalidation the more basic concept.

Another form of morally based influence-regulation can be found by applying the idea of lexical ordering to types of reasons. Lexical ordering or priority was introduced in moral theory by John Rawls (1971) in application to principles of justice and has later been explored in application to values (e.g. Griffin 1986). It can similarly be applied to reasons. Lexical ordering allows reasons to be absolute in relation to reasons lower in the hierarchy while standing in a weighing relationship to reasons on the same level. Invalidation is in one sense stronger and in one sense weaker than lexical ordering.

Invalidation is weaker than lexical ordering in that it is not hierarchical. Reason of a type that is invalidated by another type can still override reasons of a third type, that can override reasons of the invalidating type. For example, assume that reasons of type H are invalidated by reasons of type L. Now there may be other reasons, say of type O, which can override reasons of type L, but which can in turn be overridden by reasons of type H. In fact, this is exactly what anti-paternalists typically claim. H reasons (to prevent harm to a person) are invalidated by L reasons (to respect the liberty of the same person), while O reasons (to prevent harm to another person) can override L reasons, in accordance with the harm principle. Further, H reasons can override O reasons since it can be right to prevent serious harm to one person instead of preventing less serious harm to another (when there are no liberty reasons either way). In contrast, reasons of a type that is lexically prior to reasons of a second type cannot be overridden by reasons of a type that can be overridden by reasons of the second type. For example, that Rawls’ basic freedoms and liberties are lexically prior to concerns of distributive justice means that there can be no type of reason that override liberty reasons while being overridden by distributive justice reasons.

Invalidation is stronger than lexical priority in that it not only makes one reason dominate another, it makes the dominated reason completely impotent. One important point of lexical ordering is to capture cases in which reasons at one level of priority balance each other out, in which case the matter is decided by reasons on the next lower level, unless they also balance each other out, and so on. If a reason is invalidated by another reason, however, it has no influence and cannot decide anything.

My account of invalidation is an attempt to explicate a central aspect of the anti-paternalist position. A doctrine of invalidation should ideally be specified to a class of actions and a class of reasons. The doctrine then says that reasons in the relevant class do not influence the moral status of actions in the relevant class. This might have the further implication that being motivated by such a reason to perform such an action, or accepting it as justification for such an action, is inappropriate or condemnable in a way that warrants disapproval or punishment, perhaps because it manifests a bad attitude of some sort. However, the more basic idea is the normative invalidity of the reason. Whether failure to see this invalidity is immoral and if so what is the appropriate response to such immorality – these are secondary questions.[5]

II. Interference and voluntariness

Anti-paternalism is, on my understanding, the influence-regulating doctrine that personal good reasons are invalid for a certain class of actions. Call these actions problematic interferences. On most accounts, actions in this class must be liberty-limiting in some sense. Anti-paternalism typically does not entail that personal good reasons are invalid for innocuous involvement in other people’s life, such as greeting them in the street or giving them small gifts.[6] Specifying this criterion of problematic interferences is difficult, but I will not discuss these difficulties here. Nor will I consider what criteria there are exactly. Instead, I will focus on the voluntariness criterion for inclusion in the class of problematic interferences, and assume that whatever other criteria there are, are fulfilled.

On any reasonable account, anti-paternalism protects only choices or actions that are sufficiently voluntary (Feinberg 1986, chapter 20). It is not problematic interference to restrain people in rage or panic, people heavily influenced by drugs, people with severe mental disorders, or small children (unless, when applicable, this is in conflict with their previous, voluntary choice). Importantly, voluntariness cannot be determined by the reasonableness of choices or actions (Feinberg 1986, particularly chapter 20, e.g. p. 133). The very point of anti-paternalism is to protect imperfectly reasonable choices.

For Feinberg, a person acts perfectly voluntarily if she is competent, there is no coercion or duress, no subtle manipulation, no ignorance or mistake and no distorting circumstances (such as excitement, strong emotion, or time pressure) (1986, 115). Of course, hardly any choice is perfectly voluntary. Feinberg explicitly proposes that a person should be protected from paternalism if her actions or choices are “voluntary enough” (chapter 20). Given that the other criteria for problematic interference are fulfilled, anti-paternalism entails that sufficient voluntariness functions as an invalidator of personal good reasons. In other words, liberty reasons invalidate personal good reasons on the condition that the person acts sufficiently voluntary.[7]

III. First argument – voluntary choice can lead to disaster

In this and the following sections, I will present a series of scenarios. The scenarios include assumptions on what reasons there are and their relative strength. I will not defend these assumptions. I take it for granted that the specifics of the cases can be adjusted so that these assumptions are reasonable. Remember that the way I use the term reason, reasons need not have influence. That a reason for an action has a certain strength means only that we can promote or protect some value by performing that action. If the reader finds that there is no possible specification under which my scenarios make sense, this must be because she has a radically different view on what has value.

Voluntariness often has an indirect effect on the moral status of actions, since a high degree of voluntariness normally makes for good decisions, which normally makes for good consequences. When things are not normal, however, a person’s very voluntary choice can lead to catastrophic consequences. Consider:

The Bridge. A person tries to cross a bridge but we have a chance to stop her. We know that the person wants to live and is well informed about the general condition of the bridge, is acting in character, is calm and collected, attentive, mature and intelligent, under no duress or pressure, etc. Stopping her would interfere with her liberty to move around freely, which is a strong reason against doing so. However, being equally well informed about the condition of the bridge, and having considered its durability more thoroughly, we firmly believe that, appearances to the contrary, the bridge is unsafe. Stopping the person would therefore most probably prevent her from falling to certain death, which is a much stronger reason for doing so.

We know that the person in The Bridge scores high on the standard aspects of voluntariness. Presumably, she just happens to be wrong, as very able people sometimes are. Perhaps she did not bother enough to analyze the available information, perhaps she miscalculated this one time and so reached the wrong conclusion. Whatever the cause, her very voluntary choice happens to be very bad for her. Anti-paternalism seems to imply that our reason to stop the person is invalid and so we should not stop her (unless there are other reasons to do so). That is the wrong conclusion – it is morally unreasonable. We should stop the person, because otherwise she will most probably die.

In his original bridge case, from which The Bridge is adapted, Mill argues that the person may be coercively turned back “without any real infringement of his liberty; for liberty consist in doing what one desires, and he does not desire to fall into the river.” (1991 [1859], 107) Even if it is true that the person does not want to fall into the river, this does not mean that he does not want to cross the bridge (for a thorough argument, see Day 1970). We certainly desire some things though we do not desire their consequences (indeed we may do so even when we anticipate the consequences).

Crossing the bridge is most probably in conflict with the person’s goals and values. In that sense her behaviour rests on a mistake. This mistake is small in terms of information processing, but great in terms of consequences. Voluntariness could be defined as efficient goal-satisfaction, in which case the person in The Bridge probably acts non-voluntarily. However, on Feinberg’s concept of voluntariness, ignorance of the consequences of one’s action is only one of many voluntariness-reducing factors and comes in degrees. That is why I can claim that the choice to cross in The bridge is very voluntary, and that is why, as we will see in the next section, Feinberg introduces a variable standard for how voluntary is sufficiently voluntary.[8]

In general, very small imperfections in people’s decision-making process can make for disastrous decisions. If the consequences of an imperfect decision are bad enough and if these consequences can be avoided without losing anything of comparable value, they should be avoided. We can save the person in The Bridge because, in this particular case, we understand the consequences of her actions better than she does and we have an opportunity to intervene. With all the complexities of modern life and with all the expert knowledge and the sophisticated forms of intervention available, there are many such cases.

It may seem that we can save anti-paternalism by insisting that no good can be brought about by interfering with voluntary choice. This may be a conceptual argument, claiming that the good for a person is defined in terms of what she voluntarily chooses. Or the argument may be empirical, claiming that because of our great ability to make good choices for ourselves, and our great inability to help others, the outcome of sufficiently voluntary actions can never be improved by intervention. Both assumptions seem incredible, raising the standards of sufficiently voluntary action to inhuman levels and so leaving most actual choices and actions outside of the doctrine’s domain. That is unless we accept a very scattered or even inconsistent idea of the good (in the conceptual case) or a very pessimistic view of human benevolence (in the empirical case).

Importantly, if it were nonetheless true that interference with sufficiently voluntary choice could do no good, anti-paternalism of the form under investigation would be saved only at the price of redundancy. If no good can come from interference, we have no reason to interfere. Then there are no reasons for anti-paternalism to invalidate, and so the doctrine has no application.

A popular moderation of anti-paternalism makes exceptions for personal good reasons that concern autonomy (e.g. Dworkin 1972; Kleinig 1983). On such a moderation, anti-paternalists could plausibly defend stopping in The Bridge as autonomy-preserving (if autonomy is preserved by saving a life). Most any harm can diminish autonomy in some way to some extent and so this moderation can entail that some personal good reasons are always valid, making for a substantially weakened doctrine. However, given a more narrow conception of autonomy, cases can be constructed that are analogous to The Bridge but where the harm does not diminish autonomy (financial ruin or disfigurement or horrific but temporary pain may be substituted for falling to certain death).

Another form of moderation is to accept all personal good reasons as partially valid, though discounted by some factor (e.g. Groarke 2002, 219). Such versions will entail that we should stop the person in The Bridge if the reason to save her is strong enough and the discount factor large enough that the reason to respect her liberty is overridden. However, in similar cases, where the difference between the strength of the reasons for and against stopping is smaller, such versions will entail the morally wrong conclusion. The larger the factor (the smaller the discounting), the fewer such cases, and the less convincing. The most convincing cases must be constructed to match the exact discount factor. The larger the factor, the weaker the doctrine, and so, I think, the more reasonable.

In conclusion, any non-redundant anti-paternalism of substance will lead to morally wrong conclusions in some cases. Therefore, anti-paternalism should be rejected.

IV. Feinberg’s compromise

According to Feinberg, what is a sufficiently voluntary choice varies with “the nature of the circumstances, the interests at stake, and the moral or legal purpose to be served.” (1986, 117) In particular, the threshold depends on the severity of the risks involved – the higher the risks, the higher the threshold – and on whether the risks include irrevocable harm (118-121). This is a very reasonable move to make for any anti-paternalist who, like Feinberg, is concerned not simply to “prevent people from acting with low degrees of voluntariness”, but rather to “prevent people from suffering harm that they have not truly chosen to suffer.” (119)

Tying the threshold for sufficiently voluntary action to risk amounts to a compromise between unmodified anti-paternalism and consequentialism. High risks normally entails strong reasons for interference. On Feinberg’s account, personal good reasons do not support problematic interferences, but they do influence whether or not an action is a problematic interference. In this roundabout way, personal good reasons can override liberty reasons. However, the central structure of the doctrine remains intact: If an action is voluntary enough, personal good reasons are invalid.

The compromise makes anti-paternalism more flexible and so more reasonable. The anti-paternalist can now hold that we should stop the very voluntary person in The Bridge because she takes a very great risk, while we should let people who are less informed and rational go about their lives, taking smaller risks. However, the basic argument from The Bridge remains in force. The tiniest deficits in voluntariness can still make for disastrous consequences. Feinberg must accept that disaster is morally irrelevant as long as the degree of voluntariness is high enough to match the risk. Furthermore, high degrees of voluntariness need not correspond to great liberty interests. The compromise does not change the fact that high degrees of voluntariness invalidates very strong personal good reasons even when the voluntary choice is trivial from the point of view of liberty. This, I think, is unreasonable.

Severe risk should perhaps be accepted for the sake of important liberties, but not simply because choices are very voluntary. This point can be illustrated by comparing a well-planned philosophical suicide with a five-party game of Russian roulette. Feinberg’s account entails that since the suicide is five times more risky than the Russian roulette, we should accept a much lower degree of voluntariness for the roulette. Given that the circumstances are similar in other respects, this seems absurd. What should count against stopping these activities is not so much the degree of voluntariness of the agents involved, but rather the sort of liberty at stake and its value.

V. Second argument – justified interference with perfectly voluntary actions

In The Bridge, we assumed that the person failed to appreciate the risks involved. Even if she scores very high on voluntariness, there are imperfections, which happen to be very important. Stopping presumably furthers her good and so does not conflict with her hypothetical, enlightened self-interest. An anti-paternalist impressed with the first argument above may restrict her doctrine to perfectly voluntary action. However, consider this case:

The Stunt. A person tries to perform a spectacular stunt but we have a chance to stop her. We know that the person is acting perfectly voluntarily. Stopping her would interfere with her liberty, which is a strong reason against doing so. Stopping her would also eliminate a substantial risk to her health, which is a relatively weak but non-negligible reason for doing so. In addition, stopping her would eliminate a small but real risk of harm to an innocent and non-consenting passer-by. This is a strong reason for doing so, but weaker than the reason against. In the aggregate, however, the two reasons for stopping are stronger than the one reason against.

Remember that the specifics must be filled in to make the assumptions reasonable. For example, the exact risk to the passer-by can be adjusted to match the assumed strength of the reason to protect her (we certainly accept some risk to innocent and non-consenting passer-bys even from very superficial activities such as driving around for fun).

The Stunt illustrates the important and, in the paternalism debate, neglected fact that there are normally several reasons for and against any particular action. That some of these reasons are strong in no way excludes the possibility that a weak reason is decisive (tips the balance). Anti-paternalism clearly implies that we should not stop the stunt (unless there are other reasons to do so), since the personal good reason is invalid. That is the wrong conclusion. We should stop the person because of the risks to herself and to the passer-by.

It might seem surprising that we can have overriding reason to stop a perfectly voluntary action. The person obviously considers the reasons for performing the stunt stronger than those against. Since, by assumption, she also has a correct view of her own good, we cannot question her reasons for performing the stunt, nor her self-interested reasons against. However, we can disagree about her reason to avoid risking the health of the innocent passer-by. She may have little concern for the wellbeing of some passing stranger, while we (correctly) judge that this consideration decides the matter against performing the stunt.

By assumption, there must be agreement on the person’s self-interested reasons for and against acting. More importantly, however, the person may very well agree with us concerning those of our reasons for stopping her that concern her. Though she values her own health higher than other people’s, she may still agree with us on the exact strength of our reason to stop her (weak but non-negligible). She may also agree that this reason is valid. It might well be that she opposes our intervention only because she thinks that we exaggerate the strength of our reason to protect the passer-by. Anti-paternalism therefore implies that we should disregard as invalid a reason that concerns the good of a person, even though she is herself in perfect (and perfectly voluntary) agreement with us concerning the strength and validity of this reason.[9]

It could perhaps be argued that we have no reason to eliminate voluntarily assumed risks to start with. This is not a view about invalidation then but about what has value. It is an unreasonable view. People may regret having to choose between two risky options and still make a choice, voluntarily. If the circumstances are harsh, the risks may be great. If we can do something to lower these risks, without losing anything of comparable value, we should do so. If you voluntarily choose to risk your life driving to work by route A over risking your life by driving to work by route B, this in no way implies that I (working with city planning) have no reason to try to decrease the risks involved in driving either route.

As for moderations, substituting discounting for invalidation can entail that we should stop the stunt. If protecting the person from herself is a valid but discounted reason for stopping, it may, together with the reason to protect the passer-by, override the liberty reason against. However, there will be similar cases, with the relative strengths of the three reasons adjusted to match the discount factor, where such moderate anti-paternalism entails that we should not stop the stunt. As in The Bridge, the larger the discount factor, the weaker the doctrine, and the less convincing the counter-examples.

By modifying The Stunt we can see how moderation by discounting is in one way sharply distinct from absolute anti-paternalism. Assume that the liberty reason and the protection of the passer-by reason are equally strong. Now the case is a sort of moral dilemma if the personal good reason is invalid. However, as long as this reason has some influence, however small, we should stop the stunt. Any discounting version, regardless of the discount factor, will give the same answer. Absolutist anti-paternalists, on the other hand, will not like the idea that the personal good of the stunt artist should decide the case if favour of intervention.

In conclusion, we should sometimes interfere with people in order to protect or promote their good, as well as the good of others. We should do so even if the action we interfere with is perfectly voluntary and we accept people’s view of their good at face value. We should do so because we have overriding reasons to, both reasons concerning the good of others, and reasons concerning the good of the person. Anti-paternalism entails that we should disregard or discount the latter reasons, even if the person in question is in informed and perfect agreement on the strength and validity of these reasons. In effect, anti-paternalism tells us to let people harm themselves in ways they would not if they were not mistaken about their reasons to prevent harms to others. This is peculiar and arguably in conflict with liberal fundamentals. Therefore, anti-paternalism should be rejected.[10]

VI. Third argument – liberty for all

The first two arguments both accuse anti-paternalism of unacceptable disregard for important personal good reasons. Somewhat paradoxically, anti-paternalism may indirectly lead to disregard also for important liberty reasons. The doctrine only protects sufficiently voluntary choices. I propose that liberty is important not only for the most informed and capable decision-makers, but also for the demented, for minors, for the ignorant, and for people under time pressure. It is not as if the value of controlling (to some extent) one’s own life kicks in only at a certain degree of voluntariness. Perhaps there is some level under which people cannot choose for themselves or cannot appreciate self-determination. Liberty, however, has value for people that are well above this level but that we should nonetheless sometimes coerce in their own interest, for example people in their lower teens. With this, anti-paternalists should agree. Why then does not interference with the liberty of young teens activate the doctrine?

Three answers are possible for the anti-paternalist: First, she can insist that the liberty of young teens (and generally people acting under the sufficient degree of voluntariness) is of another type than the liberty of informed and rational adults and so does not activate the doctrine. This distinction in value is mysterious. The anti-paternalist can say that the important value is not liberty but autonomy, and that young teens are not fully autonomous. They may not be, but neither are many adults, and young teens are surely autonomous to some extent. There is no difference in kind between the self-determination of more and less capable decision-makers.

Second, the anti-paternalist can lower the threshold and claim that the liberty of young teens (etc.) should never be limited in their own interest, and in fact that their well-being is not even a valid reason for limiting their liberty. We have seen the problems such a view entails even for capable decision-makers. Even those who stubbornly bite the bullet and let the people in The Bridge and The Stunt kill or harm themselves, and others, cannot reasonably accept such passivity in relation to young teens.

Third, the anti-paternalist can say that for young teens, the value of liberty is appropriately reflected in the strength of liberty reasons, and so there is no need for invalidation. This is the most reasonable answer. But if this is the anti-paternalist’s answer, it is entirely unclear why things should be any different for adults. Interference with more capable decision-makers generally yields smaller rewards, since there is less room for improvement. It may also be that interference with more capable decision-makers has a greater cost in terms of liberty, because more liberty (or autonomy) is sacrificed in some sense. However, none of this indicates that personal good reasons should be invalid.

The argument does not depend on the arbitrariness of any threshold between more and less capable decision-makers. Nonetheless, it may seem easier to make a distinction in value (as in the first answer above) if there is a neutral or obvious level at which to draw the line. Anti-paternalists often do make a sharp distinction between competents and incompetents, between the healthy and the (mentally) ill, between adults and children. These categories, however, depend on underlying physical properties, which vary by degree. It may be thought that legal status provides a less arbitrary basis for a threshold. This is not so. Once bestowed, legal status may admittedly make a normative difference. It is perhaps worse to limit the liberty of a person of age, because this frustrates legitimate expectations not to be so treated that are induced by the legal system. However, such legal circumstances can only reinforce an underlying moral principle, which must be spelled out in terms of non-legal, concrete physical or psychological properties of persons. It would be hopelessly vacuous to argue that the people that we must protect from benevolent interference are those that have been granted a legal right to be so protected. A moral principle like anti-paternalism should help us decide upon such matters as when people should reach lawful age, and so cannot itself depend on the answers to such questions.

In conclusion, anti-paternalism fails to address the issue of whether or not to interfere with less than sufficiently voluntary choices made by rather autonomous people such as young teens. It makes no sense that the liberty of people who make more voluntary choices should trump other concerns, while the liberty of people who make somewhat less voluntary choices has no special moral status whatsoever. Therefore, anti-paternalism should be rejected.

VII. Fourth argument – jumps in justifiability

I will now present an argument that draws on the fact that voluntariness is entirely a matter of degree (as noted by Feinberg (1986, 104)). Arneson (2005) correctly observes that Feinberg’s anti-paternalism is committed to “the enormous overriding importance of the line between self-harming choice that is not quite voluntary enough and choice that just passes the threshold of being voluntary enough.” (268) Sometimes lines have to be drawn and sometimes much depends on whether or not a threshold is reached. For example, it is very reasonable that if a bridge is safe enough we will walk over it, while if it is not safe enough we will take a long detour and lose valuable time. This is reasonable even if the threshold is somewhat arbitrary and small differences may shift the status of the bridge from safe enough to not safe enough. For another example, if we want to categorize actions into justified and unjustified actions, there will arguably be a grey area of actions difficult to fit into either category. However, in the present case we are considering two theoretical perspectives, anti-paternalism or no anti-paternalism, only one of which demands that we draw a line at all. If drawing a line leads to unreasonable consequences, this speaks against the perspective that demands that we do so.

The problem with a threshold, however, is not only its unreasonably great importance in determining what we ought to do. The threshold does not determine directly the moral status of actions, but rather whether certain reasons have influence on this status. A valid reason makes an action more (or less) justified. Anti-paternalism implies, therefore, that an action that affects a person whose choice or action is just below the threshold of sufficient voluntariness may be much more justified than an otherwise similar action that affects a person whose choice or action is just over this threshold. At the threshold the justifiability of the action takes a ‘jump’.[11] The line gives rise to a gap, and a very large gap if the reason is a strong one.

Consider:

The Suicide. A person tries to kill herself but we have a chance to stop her. Stopping her would interfere with her liberty, which is a strong reason against doing so. Stopping her would also save her life, which is a much stronger reason for doing so.

Anti-paternalism implies that whether or not we should stop the suicide depends on the person’s degree of voluntariness (unless there are other reasons to do so). If the voluntariness is under the threshold, we have much stronger reason to stop it than not, and so stopping is clearly and with good margin justified. If, on the other hand, the voluntariness is over the threshold, we have only, as far as valid reasons go, a strong reason not to stop it, and so stopping is clearly and with good margin unjustified. I propose that this jump in justifiability is unacceptable. In fact I doubt that we can bring ourselves to even comprehend it, at least when it depends on infinitesimal differences – one further tiny piece of information, or a tiny improvement in decision-making capacity, will imply that an action that would have been overwhelmingly unjustified becomes overwhelmingly justified. Moderation by discounting would make the jumps smaller but not affect the heart of the problem. Moderation by exception might make this particular example irrelevant (if suicide diminishes autonomy for example), but there will be analogous examples with the same force.

On our assumption that people’s views of their good should be taken at face value, it may seem that we cannot have a strong reason to stop the suicide, since the person herself has judged that her life should end. However, the person might agree with us on the value of her survival, but still want to kill herself for some higher purpose, that we find lacks value. Just like in The Stunt, there may be no disagreement concerning the value of the person’s survival and liberty, but only concerning the value of some other thing, in this case something for which she wants to sacrifice her life, such as her family honour, the independence of Tibet, or the glory of God (assuming these things are not part of her good).[12] It may also be that the person agrees with us that she has stronger reasons to keep living, but feels compelled to end her life, perhaps out of despair. In such cases, of course, she is not acting perfectly voluntarily.

It may be suggested that anti-paternalism does not in fact draw a sharp line between problematic interference and other actions, since there is an area in between in which we simply do not know, or where it is genuinely indeterminate, whether an action is or is not an interference. If the indeterminacy is epistemic, the doctrine is none the more reasonable for it, only more difficult to apply. If the indeterminacy is real (ontological), however, the threshold is turned into a hole – it is really sometimes indeterminate whether or not personal good reasons give valid support to an action. Consequently, some answers to moral questions are replaced by no answers. The cases discussed in previous sections (The Bridge, The Stunt) involve people of very high and even perfect voluntariness, and so are hardly indeterminate. For the Suicide, however, the sudden jumps in justifiability could be replaced with a twilight zone of indeterminacy. Stopping would be overwhelmingly justified on one side of this zone, overwhelmingly unjustified on the other side, and indeterminate in between. We avoid jumps by giving up comprehensiveness. To my mind, this is no improvement.

Another and better strategy for avoiding a sharp threshold is to reformulate anti-paternalism as follows: Personal good reasons for an action are valid only to the extent that the action is not a problematic interference. In other words, the influence of a reason for an action is some function of two variables – strength and the degree to which the action is a problematic interference (which in turn depends partly on the degree to which it is voluntary). This modification replaces the absolute moral ban on paternalism with a sliding scale of gradual acceptance.[13] The resulting partial invalidity must be distinguished from relative weakness. If the partial invalidation only means that personal good reasons are not very strong relative to other reasons, then paternalism is in fact fully accepted over the whole range of gradual partial.

Just like indeterminacy, partial invalidity would not affect the arguments in the previous sections, since the voluntariness in those cases is very high or maximal, and so the validity of the personal good reasons very low. Jumps in justifiability, however, would be replaced with a sliding scale, and so stopping in The Suicide would be more justified the lower the degree of voluntariness. I therefore recommend this moderation to anti-paternalists, though it comes at the price of increased complexity.

In conclusion, absolute anti-paternalism gives rise to peculiar jumps in justifiability such that one action may be overwhelmingly justified while another, very similar action, is overwhelmingly unjustified. This is a strange moral landscape. Indeterminacy does not make the doctrine any more appealing. Reformulation of anti-paternalism as gradual invalidation of personal good reasons avoids the jumps, at the price of greater acceptance of personal good reasons and greater complexity. Anti-paternalism should therefore be rejected, or, possibly, modified.

VIII. Conclusion

I have presented four arguments against anti-paternalism understood as a doctrine of invalidation, regulating the influence of reasons on the moral status of actions. The analysis of anti-paternalism in terms of invalidation hopefully has some merit independently of the arguments.

The fourth argument shows that in order to avoid peculiar jumps in justifiability, anti-paternalism must be reformulated as a doctrine of partial and gradual invalidation. This weakening of the doctrine will alienate many traditional anti-paternalists who are principally opposed to counting personal good reasons as valid reasons for interferences with voluntary action. The weakening, furthermore, does not make the doctrine any more resilient to the other three arguments.

The third argument shows that anti-paternalism leaves us at a loss when considering interferences with insufficiently voluntary choice. Presumably such interferences should be evaluated by simply weighing reasons for and against. If that is so, however, it is unclear why sufficiently voluntary choice should be treated any differently.

The first and second arguments show that anti-paternalism sometimes entails morally wrong conclusions. In particular, the first argument shows that the doctrine entails that we should allow very voluntary choice to cause severe harm to self, even if nothing much is at stake in terms of liberal values. The second argument shows that the doctrine entails that we should let perfectly voluntary choice cause or risk severe harm to self and others, not because the agent rejects our reasons to interfere with her for her sake, but only because she rejects our reasons to avoid harms to others.

Taken together, I find that the four arguments amount to a strong case for abandoning the form of principled anti-paternalism defended by Joel Feinberg and implicitly accepted by many others. Very often we should let people make their own mistakes and suffer the consequences. However, there is no moral principle that forbids limiting or interfering with a person’s liberty for her good. In particular, there is no moral principle which makes reasons which concern central human values such as health and happiness invalid when they conflict with liberty reasons.

Sufficient voluntariness is a factor in many other contexts than paternalism. A claim that a person has a right to something often means that she may have or do this thing on the condition that her choice is sufficiently voluntary. The right to marry freely, to vote, to enter contracts – these rights are arguably conditional on voluntariness. Annulling or failing to accept a marriage, a vote or a contract does not violate a right if the parties concerned did not act voluntarily. We may want to annul or refuse to accept these things for personal good reasons, but also for the good of other people, or for whatever other reason. The arguments against anti-paternalism can therefore rather straightforwardly be used as prototypes for arguments against most any doctrine of invalidation. Though not as straightforwardly, the arguments may also inspire arguments against other forms of influence-regulation on moral grounds, such as side constraints and lexical ordering. I believe all morally based influence-regulation should be rejected, but have not argued for this more ambitious claim.

To oppose influence-regulating doctrines is not to deny that there are intricate relationships between reasons. Things of value may be empirically related in the sense that actions tend to affect many such things simultaneously. Things of value may also be conceptually related – value may for example be disjunctive in the sense that it is of value that one of several things happen. Rather than formulate influence-regulating doctrines, we should investigate the empirical and conceptual relationships between values and so between reasons.

When Isaiah Berlin tells us that “[t]he extent of a man’s negative freedom is, as it were, a function of what doors, and how many, are open to him; upon what prospects they open; and how open they are” (2002 [1969], 41); when Amartya Sen develops his concept of freedom as capability (1992, chapter three) or when Joseph Raz develops his ideal of autonomy (1986); when Mill develops the notion of individuality (1991 [1859], chapter III), and even when he briefly states that “[t]he only freedom which deserves the name, is that of pursuing our own good in our own way” (17) – in all these cases we see significant contributions to our system of values, to our views on what is important in life. When, on the other hand, Mill tells us that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection” (14), we are left confused as to what may then be the value of liberty and what other values there may be, that they should be related in this way.[14]

kalle.grill@yahoo.com

REFERENCES

Arneson, Richard. 1980. “Mill versus Paternalism”. Ethics 90: 470-89.

Arneson, Richard. 2005. “Joel Feinberg and the Justification of Hard Paternalism”. Legal Theory 11: 259-84.

Beauchamp, Tom L. and Childress, James F. 2001. Principles of Biomedical Ethics (5th edition). Oxford: Oxford University Press.

Berlin, Isaiah. 2002 [1969]. Five Essays on Liberty: “Introduction”. In Liberty. Oxford: Oxford University Press.

Broome, John. 2004. “Reasons”. In Reason and Value: Themes from the Moral Philosophy of Joseph Raz, eds. Jay Wallace et. al., 28-55. Oxford: Oxford University Press.

Day, J.P. 1970. “On Liberty and the Real Will”. Philosophy 45: 177-92.

De Marneffe, Peter. 2006. “Avoiding Paternalism”. Philosophy and Public Affairs 34: 68-94.

Dworkin, Gerald. 1972. “Paternalism”. The Monist 56: 64–84.

Feinberg, Joel. 1984. Harm to Others. Oxford: Oxford University Press.

Feinberg, Joel. 1986. Harm to Self. Oxford: Oxford University Press.

Gert, Joshua. 2007. “Normative Strength and the Balance of Reasons”. Philosophical Review 116: 533-62.

Griffin, James. 1986. Wellbeing - its Meaning, Measurement and Moral Importance. Oxford: Oxford University Press.

Grill, Kalle. 2007. “The Normative Core of Paternalism”. Res Publica 13: 441-58.

Groarke, Louis. 2002. “Paternalism and Egregious Harm”. Public Affairs Quarterly 16: 203-30.

Kamm, F.M. 2006. Intricate Ethics. Oxford: Oxford University Press.

Kleinig, John. 1983. Paternalism. Manchester: Manchester University Press.

Mill, John Stuart. 1991 [1859]. On Liberty. In On Liberty and Other Essays. Oxford: Oxford University Press.

Nozick, Robert. 1974. Anarchy, State, and Utopia. Malden MA: Basic Books.

Parfit, Derek. Manuscript. Climbing the Mountain.

Rawls, John. 1971. A Theory of Justice. Cambridge MA: Harvard University Press.

Raz, Joseph. 1986. The Morality of Freedom. Oxford: Oxford University Press.

Raz, Joseph. 1990 [1975]. Practical Reason and Norms (2d edition). Princeton: Princeton University Press.

Scanlon, Thomas. 1998. What We Owe to Each Other. Cambridge MA: Harvard University Press.

Scoccia, Danny. 2008. “In Defense of Hard Paternalism”. Law and Philosophy 27: 351–81.

Sen, Amartya. 1992. Inequality Re-examined. Oxford: Oxford University Press.

Sunstein, Cass R. and Thaler, Richard H. 2003. “Libertarian Paternalism Is Not an Oxymoron”. The University of Chicago Law Review 70: 1159-202.

[1] Joseph Raz’ (1990 [1975]) account of “exclusionary reasons” as reasons not to act on other reasons is based on coordination problems and on practical constraints on deliberation. I take invalidation to be more purely normative. The ideas also differ in that it is a good thing to act in accordance with excluded reasons, though not for them, while invalidated reasons are more thoroughly emptied of normative significance.

[2] For an extensive defence of this view, see Grill 2007.

[3] I aim to follow the standard use of “strength” (sometimes “weight”) employed by e.g. Raz (1990 [1975]). Joshua Gert (2007) has argued convincingly that reasons have two distinct dimensions of strength – requiring strength and justifying strength. I will disregard this complication since my argument holds for both kinds of reasons. I will however avoid talk of the “balance of reasons” and stay with the more general “influence the moral status of actions”. When I say that one reason is stronger than another, this should always be understood as concerning the same kind of strength, typically requiring strength.

[4] The term from e.g. Raz 1990 [1975], 27. Such reasons are sometimes called “decisive”, but “absolute” is preferable because “decisive” other times refer to what Raz calls “conclusive” reasons – reasons that are not overridden in a certain case (though they can be).

[5] This means that I disagree with accounts of paternalism which claim that a defining criterion of paternalism is the manifestation of a certain attitude. That is if our concept of paternalism is supposed to capture what liberals are traditionally opposed to.

[6] Sunstein and Thaler (2003) argue for what they call “libertarian paternalism”, postulating that “a policy therefore counts as “paternalistic” if it attempts to influence the choices of affected parties in a way that will make choosers better off.” (1162) A policy of providing information upon request because this makes for wise choices would thus be paternalistic. Though it is possible to oppose even such non-interfering policies I will focus on the more plausible because more restricted anti-paternalism that targets only liberty-limiting benevolence.

[7]Interference with insufficiently voluntary choice is sometimes called “soft paternalism” but is typically not opposed by anti-paternalists. Richard Arneson (2005) claims that soft anti-paternalists, accepting soft but not hard paternalism, occupy an unstable position between full acceptance of paternalism and hard anti-paternalists, who allegedly do not think that lack of voluntariness makes interference any more justified (266-68). However, even hard anti-paternalists must embrace some of the components of Feinberg’s concept of voluntariness, minimally competence and lack of duress – infants and people at gunpoint may certainly be stopped from harming themselves. The distinction between hard and soft anti-paternalism, though useful, is ultimately a matter of degree. There is no remotely reasonable end point position to occupy. (One could of course change terminology by claiming that interference with non-voluntary action is not paternalism at all, but this changes nothing of substance, see further below in the section “Third Argument – Liberty for all”.)

[8]Danny Scoccia (2008, 358) has argued that voluntariness on Feinberg’s account is about successfully furthering one’s own values, or acting as one would have done if one were perfectly informed, rational and capable. If this is true, Feinberg’s anti-paternalism is not about letting people lead their own lives, but rather about helping them promote their values, through either interference or non-interference, depending only on what is most efficient. I think this interpretation fails to appreciate Feinberg’s strong commitment to personal sovereignty.

[9] This could be avoided if perfect voluntariness entailed correct judgment of the relative strength of all reasons. This, however, seems an unwarranted conflation of concepts and would only mean that anti-paternalism is redundant for perfectly voluntary action.

[10] De Marneffe (2006, 77-79) argues against anti-paternalism that since the government can justifiably and without insult substitute its judgement for an individual’s for the sake of others, it can do so for her own sake too. My argument, in contrast, does not presuppose that there is no morally relevant distinction between first and third party interests in this context.

[11] It may be thought that such jumps are common in the law, since it is much more justified to punish a person who has barely committed a crime than one who has not. However, I propose that this is due entirely to practical considerations such as the efficiency and transparency of the legal system. Disregarding such considerations, bare crimes are not much less justified than almost crimes.

[12] Another possibility is that there is perfect agreement on the strength of the reasons involved and that these reasons determine that the person should try to kill herself and that we should try to stop her. Such agreement may entail that stopping is not liberty-limiting and so not contrary to anti-paternalism. Under perfect voluntariness, this is perhaps only possible in group cases where there are coordination problems (see Arneson (1980, 471) on enforcing a general preference through prohibition).

[13] Technically, gradual acceptance is equivalent to discounting with a variable discount factor.

[14]This article has been long in the writing. I am sure I have some unrecognized debts. For very helpful comments, I wish to thank especially Sara Belfrage, Alon Harel and Lars Lindblom. Two anonymous reviewers for other journals exposed several weaknesses as well as the many ways in which my argument could be misunderstood. Hopefully it is now more transparent.

© 2010 by Public Reason

Public Reason 2 (1): 61-76

Crooked Wood, Straight Timber – Kant, Development, and Nature

Rafael Ziegler

Ernst Moritz Arndt University of Greifswald

Abstract. Development is a widely used political concept, yet it receives relatively little philosophical attention. Conceptual clarification can draw on Kant’s writings on history and politics, which centrally include a theory of development. This theory posits developmental goals, and means of development, it presents these goals and means from a sophisticated epistemological perspective, and moreover a comprehensive perspective that includes human and non-human development. Via a discussion of the material transformations of Prussia during Kant’s time, and the resonance of this transformation in Kant’s writing – the “crooked wood” of the text, and the “straight timber” of Prussian “scientific forestry” – an argument is made for an extended theory of development that includes public reason as a means of development. It is argued that Kant’s reasons for a concern with development and the methodological spirit and scope of his approach remain pertinent, but that it is the spirit rather than the letter of Kant’s approach that can serve as a model for current theorizing.

Key words: development, public reason, sustainability, Kant, environmental history.

Due to the complexity of history, the possibility of a theory of development seems unlikely; due to wars and catastrophes a theory of development may not be desirable. It could serve as a legitimizing tool for “a set of practices, sometimes appearing to conflict with one another, which require – for the reproduction of society – the general transformation and destruction of the natural environment and of social relations” (as Gilbert Rist puts it in his History of Development (2006)). And yet, in spite of many and repeated criticisms, development has remained a widely used political concept. The often instrumental use of the concept in the context of economic growth and asymmetrical North-South relations (Shiva 1988, Sachs 1992 and 1999, Deb 2009) suggests the task of continued conceptual clarification.

This paper investigates Kant’s contribution to this task via an examination of his writings on cosmopolitanism and history, and especially his Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht (published in 1784 in the Berlinische Monatszeitschrift).[1] The Idea has been primarily discussed as a contribution to the philosophy of history (see inter alia Fackenheim 1957, Yovel 1980 and Kleingeld 1995), or more specifically universal history.[2] Yet, this contribution centrally includes a theory of development, of interest for its own sake and thought-provoking for the current discussion of development. This paper first introduces goals, motivations and means of Kant’s theory of development in Idea. Via a discussion of the material transformations of Prussia during Kant’s time, and the resonance of this transformation in Kant’s writing – the “crooked wood” of the text, and the “straight timber” of “scientific forestry” – an argument is made for an extended theory of development that includes public reason as a means of development. It is then argued that the epistemic status of Kant’s theory is at the very least also practical rather than primarily theoretical. It is in these respects that the paper seeks to contribute to the discussion of Kant’s philosophy. Drawing on this assessment, it is argued that Kant’s reasons for a concern with development and the methodological spirit and scope of his approach remain pertinent for the discussion of development today, but his discussion of the goals and means of development needs to be extended, and his biological assumptions need to be replaced. It is the spirit rather than the letter of Kant’s approach that can serve as a model for current theorizing.

I. Kant on Motives and Means of Development

Kant’s theory of development has a goal-oriented structure: “One can regard the history of the human species, in the large as the realization of a concealed plan of nature, meant to bring about an internally, and to this end, externally perfect state constitution, as the sole condition in which nature can fully develop all of its predispositions in humankind” (Idea, eighth Proposition). His theory posits an end goal, i.e. the development of all of humanity’s ‘predispositions’ or ‘natural capacities’. He states but does not normatively justify this end goal in Idea (a point that I will return to below).

Due to the relative neglect of development as a concept in current political philosophy – the philosophical discussion of development hardly shows the extent and depth of discussions of justice, equality, freedom and community – I will first introduce Kant’s arguments motivating the theory of development as a contribution to practical philosophy:

1) Consolation and hope in this world (Idea, 8:30): Human history, Kant notes, makes us turn away with indignation and we doubt that we can ever find a completed reasonable purpose in it. We turn our hope to ‘another world’ and look for consolation there. But, there is no need to despair if it is possible to develop a theory of development. Therefore, if we think that a consoling outlook on the future is desirable[3], a theory of development is needed.

2) Acceleration (Idea, 8:27 and 8:31): If we grasp the means of development, then we can “by means of our own rational projects hasten the arrival of this point in time, which will be such a happy one for our descendants.” (Idea, 8:27). The argument assumes that we are not indifferent with respect to future generations.[4]

Kant also addresses the historians:

3) Disburdening future generations (Idea, 8:31): Historians describe the past with “otherwise notable thoroughness” – and as a result place a burden of history on future generations. But, he argues, these generations will have one primary interest in history: how have past peoples and governments contributed or harmed the cosmopolitan purpose. Therefore taking into consideration the interest of future generations is a motivation for the historian to contribute to universal history.

And he addresses the politicians:

4) Honour (Idea, 8:31): Heads of governments and their servants need to understand that they will be remembered and be honoured by future generations for their contribution to the cosmopolitan purpose. If they understand that contributions to this purpose will give them the highest and lasting honour, then development will again be promoted and accelerated, or so Kant seems to imply.

This brief survey of the motivations for a theory of development shows a concern for future generations as part of the motivation for a theory of development (especially with points two and three). This concern is today associated with the call for sustainable development in response to climate change and irreversible damages to ecosystems. As we will see below, however, the relation to the environment already plays a role in Kant’s account. Finally, Kant’s motivations are practical: they revolve around the idea of a cosmopolitan purpose, as already stated in the title of Kant’s essay. They concern the possibility of progress.

However, there is also a theoretical motivation. In the introduction to Idea, Kant notes that history concerns the appearances of the will, which in his view are like all events determined by universal laws. It should therefore be possible to discover laws and causes in history. Kant ends his introduction speculating that nature might produce a Kepler or Newton to compile such a history (Idea, 8:17-18). According to the Critique of Pure Reason, theoretical reason strives to establish a systematic unity of knowledge, thus theoretical reason also strives to establish unity in history here understood as a science (Kant 1787, A653-654/B681-682; Kleingeld 2008)

As far as the means of development are concerned, societal antagonism is the primary driver of development, according to Kant. He specifies this antagonism on two levels. On the first level, he speaks of unsocial sociability. Kant describes human beings in terms of two contradictory inclinations (Hang): to be in society, and to isolate themselves. Kant describes the inclination to isolation in terms of a will to have everything according to one’s own will. Yet, having one’s will requires overcoming the resistance of others, and hence forces human beings to overcome their inclination to laziness. The conflict forces them to develop their predispositions.

The desire for honour and power, and also greed require for their attainment other human beings who have to recognize deeds, to obey and to follow property and labour rules. The attainment of these desires therefore not only leads to a development of predispositions, it is also not possible outside society.[5]

Selfish creatures can exercise their free will only if there is a constitution that secures the freedom of these creatures from the attack and infringement of others. According to Kant, the principle of this constitution is the highest freedom of each compatible with the freedom of others (Idea, 8:22). But the constitution also has a disciplinary effect and as such promotes the further development of capacities. In this sense, it is an indirect means of development.

The complement to the unsocial sociability in civil society is war between states on the societal level. While this antagonism, in Kant’s view, hinders the development of natural predispositions - due to the destructions of war and the necessity to be constantly ready for war – it does force the states to eventually work towards a cosmopolitan state, an idea that Kant only hints at in Idea, but specifies in his 1795 essay Perpetual Peace as a federation of republics. As such a federation promotes the development of predispositions, it is a further indirect means of development.[6]

This specification of the means of development in turn suggests where to look for evidence or at least traces of development in history: in the means of unsocial sociability and law. If only very sketchily and cautiously, Kant does claim that “a little” and “faint signs” can be discovered in history (Idea, 8:27, eighth proposition). The example he gives is the “regular course of improvement in the constitution of the state in our part of the world” (Idea, 8:30, ninth proposition).

II. Concealed Plans of Nature and a Prussian Episode

“One can regard the history of the human species at large as the realisation of a concealed plan of nature, meant to bring into being an internally and, to this end, externally perfect state constitution, as the only condition in which nature can fully develop all of its predispositions in humankind” (Idea, 8:27, eight Proposition). At a second look, this sentence is puzzling: why does Kant write “a concealed plan of nature . . . in which nature can fully develop all of its predispositions in humankind” (italics added)[7], i.e. all of nature’s predispositions? “All of nature’s predispositions” refers to more than human predispositions. Does Kant mean to say that the development of humankind is a condition for the development of all of nature’s predispositions? Such a reading of the passage would not only much enlarge the scope of development, but also raise the question why humankind (and its development) is a condition for the development of all of nature’s predispositions.

No doubt, it is also possible to call Kant’s phrasing unfortunate, a minor ambiguity in a text that focuses on human development.[8] Still, even on this reading there remains the question how the other predispositions of nature are related to Kant’s theory of (human) development. Not only humans have predispositions, according to Kant, and the predispositions of non-humans also ‘unfold’ or ‘develop’. So how are these ‘developments’ related? This question, which concerns the dynamic relation of society and its environment in history, is not only a condition of acceptability for a development theory in the age of sustainability, it already plays an interesting role in Kant’s theory of development.

The material transformation of the land had a prominent place on Prussia’s political agenda throughout the eighteenth century. When Kant wrote his essays on morals, politics and history in the 1780s and 1790s, this dimension of policy was well established, and it therefore could be expected to be present some way or other in Kant’s writings on these issues. Before turning to the respective places, a clarification of policies for material transformation of the land is called for.

In the concluding section of his chapter on Prussian water politics, historian David Blackbourn notes: “The wetlands of the North German plain were physically transformed in the second half of the eighteenth century.” (2006, 75). Prussia was home to many wetlands, and especially Frederick (“the Great”) had noted that the transformation of land that had no human use offered the possibility of a large-scale reclamation policy. The policy made available more agricultural land that in turn could feed a growing population and staff the military. Blackbourn’s exemplar is the Oderbruch, a marshy area between Oderberg and Lebus in the East of Berlin. Areas of this kind, Blackbourn writes, could be found everywhere in Prussia (2006, 27). Land reclamation in the Oderbruch had been attempted for some time, but only with Fredrick a large-scale transformation of the area was pushed through. A team of bureaucrats, engineers and scientists (including the noted mathematician Leonhard Euler) surveyed the area, a plan was drawn up, and from 1747-1753 a major effort was made to implement it, requiring at times up to 950 soldiers from the Prussian army. In the end, the marshes had been drained, and colonists were called in to establish agriculture in the former wetlands (62).[9] “The changes brought a new physical security to men and women who settled once inhospitable land, yet they exposed much larger number of people to potential insecurity. They also destroyed ecologically valuable wetland habitats. How do we strike the balance?” According to Blackbourn, “we can choose to celebrate a triumph of modernity, or lament a world that was lost, but neither really does justice to what the transformation meant” (62).

Blackbourn notes that this transformation was made possible, in part, due to the information made available by cameralism and its statistics (43).[10] An observation that is as pertinent for the draining of marshes as it is for the sustainable growth of forests, another important domain of policy. If the water politics just described increased agricultural land (at least in the short-term), scientific forestry primarily was meant to increase revenue (Scott 1998, 12). From the state perspective, the forest was an economic good that ought to be exploited and sustained as a source of income. It is in the context of scientific forestry that the term ‘sustainability’ (Nachhaltigkeit) was coined with reference to nature as a resource in Carlowitz’ Sylvicultura Oeconomica of 1713. The maxim to only cut as much wood as can be re-grown conceptually links sustainability and growth. And as in the case of water politics, the state focus is in tension with local uses and ecological functions of the forest.

These water and forestry policies in eighteenth century Prussia show the state ‘developing’ its environment. In this sense, nature’s predispositions are ‘developed’ in humankind, quite selectively to be sure. The material changes to the land primarily serve as a means to promote the interests of government, especially economic and military power. Nature’s predispositions (anlagen) appear as nature’s interest rate; ‘sustainability’ policies coincide with a threat to ecological sustainability and local justice.

III. Crooked Wood and straight Timber

The transformation of the land appears in Kant’s Idea in two ways: as evidence and as metaphor, both invoked to persuade readers of his theory of development. In the opening passage of his article, Kant notes “that the free will of human beings has such a great influence on marriages, on the births that result from these, and on dying, it would seem that there is no rule to which these events are subject and according to which one could calculate their number in advance” (Idea, 8:17). However, he notes that the “relevant statistics compiled annually in large countries demonstrate that these events occur just as much in accordance with constant natural laws as do inconstancies in the weather, which cannot be determined individually in advance, but which, taken together, do not fail to maintain a consistent and uninterrupted process in the growth of the plants, the flow of rivers, and other natural arrangements” (Idea, 8:17).

Kant was familiar with the work of statisticians such as Johann Süssmilch.[11] A Prussian theologian influenced by the English political arithmeticians, Süssmilch had compiled numbers on births, deaths, and sex ratios for his main work: the Divine Order. The work offered a mix of politics and religion; taking God’s first commandment to be fruitful, multiply and replenish the earth, it followed for Süssmilch that ‘order’ was best evaluated with population surveys. In Idea, statistical tables serve as initial, suggestive evidence for Kant’s conjecture that we could discover order and development in history. Anticipating the ‘statistical enthusiasm’ of the nineteenth century, Kant highlights the (surprising) discovery of order by statisticians. This discovery prepares an initial plausibility space for Kant’s Idea.

The cameral sciences also provide a powerful metaphor. Following the introduction of unsocial sociability as the primary means of development, and of the civil constitution as a necessary requirement to discipline societal antagonism, Kant notes: “It is only in a refuge such as a civic union that these same inclinations subsequently produce the best effect, just as trees in a forest, precisely by seeking to take air and light from all the others around them, compel each other to look for air and light above themselves and thus grow up straight and beautiful, while those that live apart from others and sprout their branches freely grow stunted, crooked, and bent” (Idea, fifth Proposition). If considered in the context of cameralism and its scientific forestry, this metaphor resonates with a major change of eighteenth century Prussia: the effort to maximise and sustain the revenue from timber via the growth of straight “normal trees”[12], the planting of commercially viable trees and the resulting monocultures. Viewed in this context, the metaphor points to the idea of a parallel development in human society - from normalbaum to normalmensch, who optimally develops his or her predispositions in the unsocial sociability of civil society. The metaphor supports a social thesis, though with characteristic caution, Kant adds in the next proposition: “nothing entirely straight can be fashioned from the crooked wood of which humankind is made” - to which foresters might have added after their many failed attempts to maximise sustained yield that trees are too crooked as well.

If this use of evidence and metaphors from cameralism and its Statistik is noted, as is not the case in the philosophical literature on Kant as far as I can tell, Kant’s language resonates with and points to material changes in the eighteenth century: the work of government to maximise revenue yield from forestry, and to desiccate the land so as to increase agricultural areas and so forth. It points to “the growth of plants, and the flows of rivers” (Idea, 8:17), i.e. the growing of timber for maximum revenue and the rectification of rivers for transport. As noted, these material transformations introduce ‘sustainability’ as a concern tightly linked to political and economic power. So understood, they therefore also necessitate to consider ‘unsocial sociability’ – and the way the trees “compel each other to look for air and light above themselves” – not only on the level of individual antagonism, of individual against individual and of tree against tree, but also and especially on the political level: who compels humans and trees to grow straight, and what is the implication for the theory of development?

IV. What was Enlightenment?

Idea, as noted, focuses the accounts of means of development on unsocial sociability and on the power of the state (and a federation of states) for disciplining the social antagonism. The historical perspective, with an ‘enlightened’ absolutist ruler ‘developing’ land and people according to his view, puts into perspective the focus on ‘unsocial sociability’/trees compelling each other – scientific forestry seeks maximum sustained yield – and on the disciplinary force of the state – to what end and how does scientific forestry ‘develop’ the forest? The tree metaphor, considered as an image issuing from eighteenth century practices, points to political, economic and scientific power, from a focus on trees compelling each other to a focus on state power to exploit and ‘develop’ the land. Thus, is the account of means of development sufficient given the Kantian formulation of the end of development?

In Answer to the Question: What is Enlightenment, an article published in the same year as Idea in a later issue of the Berlinische Monatszeitschrift, Kant tells his readers that humankind is still by and large immature. Out of convenience and cowardice, human beings prefer to follow the experts rather than use their own understanding. “It is so comfortable to be immature. If I have a book that reasons for me, a pastor who acts as my conscience, a physician who determines my diet for me, etc., then I need not make any effort myself” (Kant 8:33). At first sight, this “comfortable” situation seems quite removed from the diagnosis of ‘unsocial sociability’!

In the context of this Enlightenment episode of ‘universal history’, Kant introduces a distinction between the private and the public use of reason. The private use of reason is the use of reason in a “civil post or office with which one is entrusted.” (Kant 8:37). The public use of reason is “the use that anyone makes thereof as a scholar before the reading world” (ibid.). The public use of reason, Kant argues, promotes a process of social learning that moves society closer to the state of justice. He performatively suggests that the use of public reason with respect to laws and policies is oriented by a criterion of justice. More precisely, “the touchstone of anything that can serve as a law over a people lies in the question: whether a people could impose such a law on itself.” (Kant 8:39[13]). Thus, the public use of reason is not only characterised negatively as not subject to private orders (institutional requirements of foresters, military etc.). As a contribution to policy discussions, Kant subjects it to a “touchstone”: are the forestry, land and water regulation appropriate to the ideal of a people imposing law on itself?[14]

With respect to the public use of reason, the tree metaphor breaks down. Citizens do not “mutually compel each other”, they address each other independently of their private mandates and offices, and they address “the entire reading world”. According to Kant’s famous argument, their public use of reason is critical for the process of social learning promoting development. His argument can be strengthened via a consideration of environmental history. With a view on the material transformation of the land, the public sphere and the information and considerations it makes available can play a role of taming where the state proceeds with policies (called ‘developmental’ or not) that incur significant costs to citizens as well as the non-human world, or that at any rate have an impact on citizens and the non-human world that is considerably more complex than what the state could see with its statistics (Scott 1998, 5). Precisely, because there are many and interrelated social and ecological functions of forests, rivers and land, the inclusion of voices that would not be heard by existing institutions, or that would not be heard “in” them, is critical (also to do justice to what that “transformation really means”). This environmental history argument is different from but not in conflict with Kant’s own argument in What is Enlightenment, which strongly draws on the idea of a vocation of human nature to think for itself (Kant 8:41). According to both arguments, the public use of reason is a means of development (and according to the second even an end). So as to highlight the use of public reason as a development means we can speak of Kant’s extended theory of development (“extended” because it is not given much consideration in Idea)[15].

To be sure, there are hints at the public use of reason as a means of development in Idea (Idea, 8:28). And there is also a closeness of choice of imagery in the two articles: Idea speaks of “childish” foolishness, destructiveness and wickedness; What is Enlightenment describes enlightenment as an “exit” from “immaturity”, and the paradigmatic case of unmündige human beings are children. Still, Kant’s theory of development as outlined in Idea does not put much emphasis on the public use of reason as a means of development. It is as if the focus on the plot of ‘universal history’ leads to a fading away of, and a neglect of the episode Kant witnesses in his own life. Yet, it is in this Enlightenment[16] episode that important ‘development’ policies of the state, involving large-scale material transformations of the land, have their beginning, and with them a vocabulary, involving the concepts of development and sustainability that still affect us materially today, and also the way in which we think about these issues.

V. The “final end”: theory and practice

The last section proposed a refinement of Kant’s theory of development as stated in Idea. This section turns to the meta-level: how to think about Kant’s theory on the epistemological level. Is Kant’s primary interest a contribution to method in history, is his primary interest practical (advancing the cosmopolitan purpose), or is it a mixture of these interests? According to Pauline Kleingeld, Kant’s purpose is primarily theoretical rather than practical. “As a matter of fact Kant solves a theoretical-speculative question, viz the question regarding the purposive unity of the world of appearance, with the help of moral-practical concepts, yet this does not turn the question itself into a moral-practical one. Idea is primarily philosophy of history with a theoretical purpose.”[17]

In support of this interpretation, there is Kant’s introductory claim that history as concerning the world of appearance ought to be subject to the laws of nature, and hence to theory-building akin perhaps even to the works of a Newton. And there is a theoretical motivation for this effort in theory-building, i.e. Kant’s claim in the Critique of Pure Reason that the mind strives to establish a systematic unity of knowledge, universal history being one domain of application or exertion of this strife.

However, Kant not only states this theoretical interest. He immediately follows up on his introductory observation with the “hope” that we can discern a “progression”, even a “steady” progress of the capacities of the human species. Thus, from the start the theoretical is directly tied to the practical concern. That this relation is not merely that of an added on hope becomes clear if the second more difficult point from the Critique of Pure Reason is also taken into account.

Kant’s discussion of the regulative use of ideas of science in the Critique of Pure Reason still receives much praise (Tetens 2006, 294). However, at least for the present issue some qualifications are in order.

1) The claim that theoretical reasons naturally strives to establish a systematic unity of knowledge as a claim about what scientists actually do needs to be heavily qualified or else is simply false. A pluralist spirit that accepts and endorses the limits of scientific unity is arguably as frequent among scientists as is the spirit of systematisers who for example want to reduce all science to physics. In particular, historians frequently focus on the singular historical event rather than on law-based explanations. Thus, with a view on science as practiced, the argument for unity is far from self-evident.

2) This observation of the plurality of theoretical approaches in practice prepares a second qualification. Even the strife for systematic unity does not explain the specific focus on a theory of development that Kant chooses for his approach to ‘universal history’. The strife for unity is prima facie indeterminate as to what system of unity is to be chosen for the temporal ordering of events: a progressing one as in Kant, one with ups and downs as in Mendelssohn, an apocalyptic one etc. According to Kleingeld, Kant for all the sophistication of his approach “fails to pose the question how one would go about choosing various competing proposals for regulative ideas” (Kleingeld 2008:527). Yet this point has to be modified if the purpose is a practical one. For practical reasons, a focus on a theory of development with ends and goals can be motivated (see the discussion above), and this practical purpose offers criteria for theory choice and the selection of explanatory ‘mechanisms’[18]. For example, with these practical interests the Darwinian theory of evolution as such is not very “useful” (though it might provide background information and constraints). The present considerations have two implications: a) they tend to support the view that Kant rather than having overlooked the problem of theory choice, did not see the problem because his primary interest was practical, not theoretical; b) affirming this practical purpose opens a quite different question of choice: that of normative goals and their justification. The paper will return to the last point below.

3) Arguably, the Critique of Pure Reason offers a theoretical argument for the focus on a theory of development with goals and means. Kant claims that the purposive unity of things is the highest formal unity (A 687/B715). Thus, a systemiser with respect to history should opt for a “purposive unity”. Yet, is this “highest unity” as a regulative principle always beneficial and never harmful from a theoretical perspective? For example, in the Groundwork, Kant uses teleological reasoning to argue that human beings are not made to be happy, because reason is a bad instrument for this end; the result is his infamous theoretical disinterest in the “science of happiness” for the first problems of moral theory (Kant 4:395). Thus, by hindsight the benefit of teleological reasoning seems doubtful here, even as a heuristic device. More importantly, perhaps, why should the teleological order be the highest order? It could be argued that a teleological unity orders all appearances under one final end. Yet, no doubt it is logically conceivable to think of history as governed by one evolutionary mechanism (or ultimately by the second law of thermodynamics). Again, a theoretical justification of this superiority claim at the very least does not seem self-evident. However, practical purpose explains quite well why a goals-means structure is useful for ‘universal history’: human agency is, at least for all practical purposes, difficult to explain without the distinction of goals and means.

In conclusion, “the primacy of theoretical purpose” does not seem to be plausible with respect to Idea. In the text, the assertion of theoretical interest is interwoven with practical interest. Moreover, practical purpose seems to better explain the theory choices Kant makes than a pure theoretical purpose. Thus, the justification and specification of the systematizing theoretical intent at least co-depends on practical reason (the theoretical ones being indeterminate or simply too problematic). On the present interpretation this has two implications: What is the precise practical purpose, and how is it justified? What follows from this practical purpose for the empirical study of history and development? I will turn to the first question below. For the second, question Kant makes the point clearly: the practical purpose offers an idea with which to study development in history. It does not license the expectation or claim that history has been such. Rather, it orients the search for signs of possible development. In short, this is a practical and epistemically cautious perspective.

VI. Development and environment

The specification and reconsideration of Kant’s (extended) theory of development raises numerous questions. In this section, I would like to emphasise three issues concerning the relation of human development to the environment: 1) the relation between Kant’s conceptualisations of nature and the extended theory of development, 2) the ethical significance of all of nature’s predispositions, and 3) Kant’s biological assumptions (anlagen).

In Idea, nature features as providence and as system of laws. In terms of this first conceptualisation Kant writes of the hidden “intent of nature” (Idea, 8:17), that “nature has willed that” (Idea, third Proposition, 8:29), of the “concealed plan of nature” (Idea, eighth Proposition, 8:27), and of “nature, or rather of providence.” (Idea, ninth Proposition, 8:30). This conceptualisation takes a “divine” view on history from distant beginnings to the equally distant cosmopolitan purpose; and it takes a teleological view of a nature that has willed predispositions to develop (according to the Critique of Pure Reason, such a teleological approach is the best-available research heuristic). Kant asks whether signs of such a teleological development can be discovered, and hence whether development so understood is possible. Idea also includes the conceptualisation of nature as the existence of things, so far as it is determined according to universal laws. Kant invokes in the introduction to Idea events that “occur . . . in accordance with constant natural laws” (Idea, 8:17), and as noted calls for a Kepler or Newton of ‘universal history’ (Idea, 8:18).

Now, these conceptualisations of nature, and in particular the idea of providence, also play a role in the politics of development. In this introductory context, Kant draws on “statistics compiled annually in large countries.” (Idea, 8:17). As the Prussian episode shows, such statistics were generally compiled for a practical purpose such as the physical transformation of the land according to (‘sustainability’) maxims and other goals: maximising and sustaining revenue from timber, desiccating the land to increase agricultural yield and so forth - in short, practical, human-imposed law. Such goals and laws can be specified by the ruler and his experts with or without accountability to those affected by them. There are various degrees and forms of accountability: from public debate to the accountability of leaders and laws in elections and referenda. But for the present purpose, a more general point is sufficient. Rulers and policy-makers can and have justified their proposals and actions as in harmony with nature or in line with or even fulfilling “divine providence”. Here the conceptualisation of nature, along with the idea of progress, have played a powerful legitimising role. Yet, the consideration of the “Prussian episode” and the material transformations of the land in the last sections suggested that such ‘development’ require scrutiny. It is difficult to do justice to these transformations. Especially the record of ‘development policy’ issuing from large organisations, be it states or corporations, with no accountability to the public is poor: many human uses of nature’s predispositions will be ignored, local ecological insight lost, “all of nature’s predispositions” will hardly develop, and monocultures can replace biodiversity as techniques for taking nature and society into account created unprecedented possibilities for central state (and economic) power. The use of public reason is a means to open development to its multi-perspectival complexity: to do justice to transformations, and to possibly achieve just transformations.

This point on the relations between the conceptualisation of nature and the theory of development leads to a further point regarding “all of nature’s predispositions”. As current theorizing about development tends to be thoroughly anthropocentric, the comprehensive significance of this claim is easily passed over. And no doubt, Kant does not offer an environmental ethic that would ascribe value to nature independently and on par with the value of human beings. If anything, “all of nature’s predispositions” are hierarchically ordered with human values on top (Düsing 1968). Still, two points are worth mentioning: 1) the extended theory of development (i.e. including the use of public reason as a means) is likely to better take into account nature’s predispositions, which co-evolve with particular groups and their ways of interacting and using the environment, to the extent that this co-evolution can be articulated and voiced by the respective groups (Norgaard 1994); 2) Kant’s hierarchical order of purposes with human purpose on top at least includes other “lower” purposes - a comprehensiveness not achieved by the majority of most recent theories of development, but no doubt a desideratum for current theorizing about (sustainable) development.

Finally, Kant’s account of natural and given predispositions as constitutive part of his theory of development is hard to defend. It relies on a theory of generic pre-formation that Kant adopted from Johann Friedrich Blumenbach (Kleingeld 1996, 125ff). According to this theory, the creator has endowed the species with predispositions. There is an a-historical, biological background to Kant’s universal history: species are endowed, ab initio, with predispositions; these predispositions are given and remain the same; they only have to “develop” in history. It is a pre-evolutionary account that will be rejected by biologists. However, and this point is closely linked to the point about environmental ethics above, in abstract and vague terms, Kant’s approach based on “all of nature’s predispositions” is no doubt attractive. In the sustainable development discourse, it is widely understood (and governments have officially and repeatedly stated) that a mere focus on “human development” is insufficient; ecosystem functioning is an important condition of human development, and human development in turn impacts this functioning. Therefore, even if the biological assumptions of Kant’s theory of development are rejected, on a more general level the epistemic spirit of his theory of development is still attractive: the theory of development ought to turn to the best current biophysical theories (as Kant had turned to Blumenbach) for a properly comprehensive theory of development, even if that necessitates the repeated revision of the theory due to the falsification process of science.

Vii. Concluding Remarks

Kant’s theory of development is as interesting as it is problematic. Let me therefore conclude with some remarks regarding the distinctive features of Kantian theory of development, with a view on current debates in political philosophy and sustainable development:

Development as a normative concept: If the predisposition biology is dated, is then not also the reason for the development language removed (that is the entwicklung der anlagen)? The consideration of the arguments motivating the Kantian theory of development – consolation, acceleration, disburdening future generations, and honour – indicate that there is a genuine normative space occupied by the theory of development. Development, even if often abused, is not just a concept of abuse. A further exploration of this space is required, or so I would like to suggest.

Taking nature into account: Kant’s theory of development unlike many current theories is based on a comprehensive theory of development that includes the human and non-human world alike. Even if the letter of the biological theory employed by Kant will be rejected, the spirit of this approach remains pertinent. As development centrally involves the question of the nature-society relation, drawing on the best currently available biological (and other theories) seems inevitable – and necessarily raises the next issue as to how such an interdisciplinary approach is to be worked out. In addition to Kant’s own suggestions, the search for “signs” or “traces” of (possible) development in history will have to look out for more than legal changes - the ways in which the land is transformed is more than a matter of metaphor.

History: I have focused on the theory of development that is a constitutive part of Kant’s universal history. However, universal history also indicates something that much current theorizing of development seems to ignore: a properly world historical perspective. An important task for a theory of development is the attempt to do “justice to transformations” (as Blackbourn puts it). Without such care, there is little prospect for “consolation”.

Goal justification: Kant’s development goals (see section 2) are posited rather than justified in Idea, not least, perhaps, because Kant relies on what he takes to be a plausible biological theory. However, the development of predispositions is morally and ethically considered an ambiguous process. This concern is a moot point to the extent that the predispositions-biology is rejected; however it implies the valid lesson that developmental goals require normative justification rather than postulation. Perhaps, a trivial theoretical point, but an important practical one to the extent that the focus on development as economic growth still prevails.

(Not so) Hidden Plans: Kant puts much emphasis on the idea of a “concealed plan” of nature (specified primarily in terms of the societal antagonism). However, reconsidering the Kantian theory of development in the light of the Prussian episode suggests a mixed picture. “Hidden” means such as the societal antagonism might play a role, in particular perhaps in the economy. But if public reason is considered a further, complementary means of development, then developmental goals cannot just be “hidden” – the use of public reason ultimately relies on some grasp and discussion of developmental goals, an open cosmopolitan plan in the making so to speak. This non-hidden nature is doubly important to the extent that self-proclaimed developers turn “trees into thalers”, and “straighten” human crooked wood according to their visions. The use of public reason is one antidote against these objectification tendencies in real world ’development’ by large organisations such as states and corporations. Finally, such a mixed account of the role of human beings as ends and means seems also required by Kant’s motivating arguments for a theory of development: acceleration of development, disburdening future generations, and considerations of honour all require a plan that is at least not only concealed.

rziegler@uni-greifswald.de

References

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———. 1787. Kritik der reinen Vernunft. 2nd ed. Vol. 3: Akademie-Ausgabe.

———. 2006. Toward Perpetual Peace and Other Writings. Ed. Pauline Kleingeld, trans. L. Colclasure. New Haven and London: Yale University Press.

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Sturm, Thomas. (forthcoming 2011). Kant and Models of the Historical Development of Humankind in the Late 18th Century. Ed. Claudio la Rocca et al., Kant und die Philosophie in Weltbürgerlicher Absicht. Akten des XI. Internationalen Kant-Kongresses; Berlin: Walter de Gruyter .

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[1] All references to this text as well as to Kant’s “On the Common Saying: This May Be True in Theory, but It Does Not Apply in Practice” are from Kant (2006) edited by Pauline Kleingeld and translated by David L. Colclasure.

[2] The genre ‘universal history’ was well established in the eighteenth century. As the adjective ‘universal’ indicates, it was to be history of humankind in general, and not of a specific political event or national culture.

[3] In “On the Common Saying” Kant notes “this hope for better times, without which a serious desire to do something that promotes the general good would never have warmed the human heart, has always had an influence on the work of the well-thinking” (Kant 8:309).

[4] For Kant’s view on duties towards future generation see “On the Common Saying”; for a more recent Kantian argument see Rawls 1999, §44.

[5] These contradictory inclinations leave open and enable human diversity across time and peoples. “Kant’s anthropology lectures are, accordingly, permeated with claims about human role-playing in society, our ‘concealing’ and ‘dissembling’ egoistic intentions before others and with the social necessity of developing ‘characters’ . . . our unsocial sociability makes possible the plasticity and perfectibility of human nature.” (Sturm, forthcoming).

[6] In view of Perpetual Peace the development promoted thereby is chiefly due to cosmopolitan demand of hospitality and the commerce this makes possible (see the third definitive article of Kant’s Perpetual Peace).

[7] The original German sentence reads as follows: “Man kann die Geschichte der Menschengattung im großen als die Vollziehung eines verborgenen Plans der Natur ansehen, um eine innerlich- und zu diesem Zwecke, auch äußerlich- vollkommene Staatsverfassung zu Stande zu bringen, als den einzigen Zustand, in welchem sie alle ihre Anlagen in der Menschheit völlig entwickeln kann.”

[8] In the second proposition Kant specifies that those “predispositions aimed at the use of reason are to be developed in full only in the species, but not in the individual”. But this is a reason-specific point, and it does not follow that other predispositions in nature could not “develop” on the level of species or some other level (for example the “development” of a species due to breeding techniques).

[9] For an account of the scale of the Prussian effort of this type of internal colonisation see Blackbourn 2006, 41-42.

[10] On this early root of “statistics” see Lazarsfeld 1961. On cameralism and scientific forestry (discussed below) see Lowood 1990.

[11] Kant’s readings can be accessed at http://web.uni-marburg.de/kant//webseitn/ka_lektu.htm (accessed June 3, 2009).

[12] I take the expression “Normalbaum” from Loowood and his discussion of Georg Ludwig Hartigs “Neue Instructionen für die Königlich-Preussischen Forst-Geometer und Forst-Taxatoren, durch Beispiele erklärt” (see Loowood 1990, 332).

[13] This touchstone is closely tied to the fifth proposition in Idea, and to the idea of autonomy in Kant’s moral philosophy.

[14] Joseph Lewandowski has discussed Kant’s public-private distinction in terms of freedom and constraints in this journal. In his view, Kant “over-reaches in his characterization of the ‘public’ as a kind of cosmopolitanism outside of all constitutive constraints” (Lewandowski 2009:7), and Kant insufficiently addresses the inequalities and exclusions of the private use of reason (ibid. 6). In Lewandowski’s view, the role of reason is to reflexively optimize constitutive constraints. But what is optimization? On one set of views (subjectivist and/or relativist), there is no general answer; on a second (economic) view, optimisation concerns the efficient allocation of resources given subjective preferences, and on a third view optimization needs to be spelled out in terms of principles of justice, equality and liberty. The second view simply blocks reflexivity (‘preferences’ are given) and hence is not a plausible interpretation. If the first view also is rejected (compare Lewandrowksi on Nietzsche and others, 2), we are driven towards some account of criteria of justice, i.e. a “touchstone”. Therefore, I would question whether Lewandowski’s account shows Kant to “over-reach in his characterization of public reason”. Kant offers one way to spell out the “optimization” and “maximization” of human freedom (ibid 1). The use of public reason so understood can be “informed” by “private” considerations and knowledge, but in the limit it can raise up to the level of citizens of the world: every institution can be scrutinised by public reason with a view on its inequalities and exclusions (as viewed against the criterion of justice). The accompanying vision is not one of a “market-based democracy” (10), but if anything of a democracy-based market, or in Kantian terms a republic-based unsocial sociability. No doubt, this normative vision can be criticised (is self-imposed law and the accompanying idea of autonomy the correct normative and constitutive constraint?), but not, I think, by an argument appealing to reflexivity as optimisation of constraints.

[15] As with the other means of development, public use of reason concerns possible development. Will local people make their voice heard, or will their voice be “reinforced” by “learned” people (gelehrte), will they be listened to etc.?

[16] On the public use of reason as constitutive of Kantian Enlightenment see Deligiorgi 2005.

[17] Kleingeld, ‘Fortschritt‘, 31, my translation.

[18] ‘Mechanism’ is a difficult technical term in Kant’s theoretical philosophy concerning the blind causal relation between material objects (for an extended discussion see Breitenbach 2008). As the discussion of the use of public reason above will have illustrated, on the present reading, such blind causal relation fails in the present context. Following Kleingeld, this paper uses the term ‘means’. The relation between ’means’ (mittel) and ‘mechanism’ in the light of Kant’s philosophy and his account of development is a topic that would deserve a paper of its own.

[19]I would like to thank the participants at the Nature’s Accountability Conference at the German Historical Institute (GHI) in October 2008 and at the Progress and Reason? Workshop at the University of Greifswald in June 2009. For detailed comments I would like to thank Reinhold Aschenberg and Pauline Kleingeld. I would like to thank Sabine Höhler for making possible the GHI workshop, and Konrad Ott for enabling the Greifswald workshop. For her support in finalizing the text I would like to thank Anne-Marie Reynaud. Finally I would like to acknowledge the financial support of the social-ecological research program (SÖF) of the German Ministry of Education and Research (BMBF).

© 2010 by Public Reason

Public Reason 2 (1): 77-84

Human Security and Liberal Peace

Some Rawlsian Considerations

Alejandro Agafonow

The Autonomous University of Barcelona

Abstract. The aim of this article is to contend that, in opposition to Begby’s and Burgess’ argument, the idea of human security is not able to deal with the potential conflict between individuals’ and communities’ claims, unless it is properly qualified by political liberalism. We sustain that it can be expected that negotiations, on behalf of different idiosyncrasies, can reach an overlapping consensus that privileges community security over personal security, institutionalizing what, from a liberal viewpoint, are oppressive practices. Then, liberal peacebuilders have to decide on the kind of incomplete overlapping consensus that would be tolerable; yet, in doing so, they have to be careful not to close the door to enable liberalism to thrive in more traditional societies which, after a long process of experimentation with democratic deliberation, may finally span the core of consensus in order to include sensitive matters.

Key words: human security, community security, personal security, liberal peace, Rawls.

May human security be part of a solution to the balance between individual and community claims? Begby and Burgess have given an affirmative answer in their article (published in Vol. 1, No. 1 of this journal), where they address the critiques of liberal peacebuilding. Since, according to these critiques, the basic sense of self of individuals and the value sets that drive the organization of their lives are only possible by means of their membership in larger communities, liberal-driven humanitarian interventions face the challenge of balancing the claims of individuals and communities. Indeed, Begby and Burgess (2009, 96, 99) argue that the idea of human security is capable of addressing such conflicting claims as it turns away from a state-centered notion of security, which tried to justify the one-time Western imposition that drove foreign-led post-war reconstruction, emphasizing the importance of the lives of individual subjects, as well as sub-state communities of subjects.

To do so, Begby and Burgess (2009, 102) argue that, rather than confining itself to offer a solution to the lack of adequate political representation, the dialectic of liberal peacebuilding as it is conveyed by the idea of human security goes further, endeavoring to lay the foundation for a lasting peace. So, their main contention is that the idea of human security is able to provide for a lasting peace as it makes room for the lives of individual subjects and sub-state communities of subjects, providing for the abovementioned balance. Certainly, the idea of human security as it was set forth in the Human Development Report (see UNDP 1994, 24 and Willett 2006) intended to go beyond the limited concept of national security in two ways: a stress on people’s security as opposed to territorial security and on sustainable human development as opposed to security through armaments. For this purpose, this report gathered the threats to human security in seven main categories, among which stand out–because of their importance for this balance–personal security and community security.

It is our contention that the idea of human security is not able to deal with the potential conflict between individuals’ and communities’ claims, unless it is properly qualified by political liberalism. Even though Begby and Burgess are on the right track, the idea of human security as it is set forth by them does not manage to settle this conflict because their analysis seems to confine itself to an open-ended, inductive approach to peacebuilding that, though valuable in itself, may have missed the big picture that the deductive approach of Kantian-constructivism provides. We will argue that it can be expected that negotiations, on behalf of different idiosyncrasies, can reach an overlapping consensus that privileges community security over personal security, institutionalizing what, from a liberal viewpoint, are oppressive practices, and that, if this were rejected in the name of a metaphysical or epistemological liberalism, it might close the door for liberalism to thrive in the long run in more traditional societies.

I. PERSONAL SECURITY VS. COMMUNITY SECURITY

Personal security is defined as security from physical violence, the threats of which take the form of gender-based violence and child abuse, among others; whereas community security may be defined as security from being banished from or having one’s membership in a group taken away, which, otherwise, would normally provide for cultural identity, reassuring set of values, and practical support (see UNDP 1994, 30-32). This report acknowledges that membership in a group sometimes perpetuates oppressive practices, which collide with personal or other types of security, as, for example, female circumcision or genital mutilation practiced in some African traditional communities (see UNDP 1994, 31). Begby and Burgess contend that human security can offer a solution to the balance of individuals’ and communities’ claims, as follows:

But to assert that the liberal approach is incapable – or any less capable than a competing approach – of allowing us to address such conflicting claims in any particular case is unfounded. Indeed, here is where critics neglect that the development of the concept of human security may be part of a solution, rather than just more of the same. For while the concept of human security is certainly rooted in a conception of individual rights and their political priority, it is not insensitive to competing claims as well. Human security beckons us to study the needs of concrete individuals in the concrete settings of their lives. In areas marked by prolonged and bitter conflict, certain material needs will quite naturally take precedence: freedom from persecution and the threat of violence; freedom from poverty, hunger, and sickness. But as human security marks a distinct broadening of the liberal agenda, it is simply wrong to assert that it cannot also accommodate the idea that the needs of human individuals to be part of larger communities is among their basic needs, inasmuch as it is through membership in such communities that individuals derive their basic sense of self and the value-sets around which they organize their lives. (2009, 99)

The solution of Begby and Burgess (2009, 97) relies on a “. . . more clear-eyed appreciation . . . of those more intangible but no less important needs that have more recently been added under the heading of human security” or rephrasing the critics of liberal peacebuilding, “. . . what is required is more knowledge and greater sensitivity cultivated for any single case” (Begby and Burgess 2009, 100). In our view, this may not be enough to provide a solution to the problem of the collision of personal and community security. Does community security have priority over personal security no matter how oppressive the former might be considered for a liberal eye? Or, on the contrary, does personal security have priority over community security no matter how domineering the former might appear for a non-liberal eye? Hence, do liberal peacebuilding operations have to ban or allow practices that collide with personal security or vice versa?

We think that Begby and Burgess are on the right track indeed. However, we would like to articulate a concern about what may be a lack of persuasiveness in their argument running the risk of missing its target, which is to rebut critics. To our mind, in looking for the foundations of a lasting peace, they have somewhat neglected what is precisely the cornerstone of a liberal approach, i.e., adequate political representation, which in their article appears as a secondary goal being preceded by a sort of political institutions that are not clearly defined. In their argument, elements appear back to front in the following terms:

In many of the cases that today prompt us to consider the humanitarian intervention, one must be open for the possibility, even the necessity, of a prolonged presence if one is to intervene at all. And here, of course, is where the dialectic of liberal peacebuilding finds its place, and not merely in response to, say, lack of adequate political representation. What one hopes to achieve by such peacebuilding is to erect the foundations of political institutions that could make for a lasting peace. (Begby and Burgess 2009, 102)

A compelling case for liberal peacebuilding should start by showing to its critics that no degree of community security is feasible anyway, unless it has reached a stable equilibrium among the contending parties, ensuring a normative core compatible with the sole internal jurisdiction of each community, which has to fall outside the overall political regulation. If Begby and Burgess argued that a clear-eyed appreciation of communities’ intangible needs on behalf of peacebuilders might help to advise communities in the event of unseen opportunities for agreement, we will not disagree. However, in their argument, the sensitivity that enables one to reveal the communities’ intangible needs seems to be devoid of a proper liberal framework because the analysis seems to confine itself to an open-ended inductive approach to peacebuilding that, though valuable in itself, may have missed the big picture that the deductive approach of Kantian-constructivism provides. Hence, it becomes difficult to set forth concrete institutional arrangements that would provide for a lasting peace.

II. LIBERAL PEACEBUILDING AS POLITICAL REPRESENTATION

From a liberal point of view, the only ones who have to have a clear-eyed appreciation of their own intangible needs are the communities themselves as they are the ones who have to engage in negotiations to agree on the institutions that will govern their own prospects of living. Peacebuilders, guided by liberal motives, have to confine themselves to being guarantors that, as far as possible, negotiations occur on an equal footing and without any major strategic advantages that favor any one interested party. If these advantages take place, any semblance of stability will unravel when the aggrieved negotiating party reaches the belief that there are reasonable complaints against the established order. It is precisely here where the idea of overlapping consensus of Rawls (1996) can guide peacebuilders in their aim as it masterly illustrates how different comprehensive doctrines organize themselves to overcome political cleavages, so that more or less diverging interests are satisfied without privileging one over any other.

Then, peace disruption refers us to the lack of adequate political representation that makes it impossible for parties to agree on the overall political regulation of a given set of public matters. In order to reach concrete institutional arrangements that would drive all the concerned parties to embrace peace, we have to start by showing that decisions taken unilaterally and without the consent of the other parties will affect the well-being of the deserter. That is, in the absence of feelings of love or solidarity among the parties in conflict, which otherwise would prompt cooperation, it is imperative to point out in a Nashian fashion the prejudices of unrestricted competition. However, this bargainers’ equilibrium depicted by Nash (1950) might not be enough as it implies a local equilibrium characteristic of monopolies and oligopolies (see Guerrien 1998, 149 and Morgenstern 1972, 1171), and it almost certainly would imply the exclusion of key parties.

We need a sort of general equilibrium concerning all or a substantial share of the parties involved. If negotiations aim to achieve peace on an equal footing and without any advantages favoring any one interested party like the Ralwsian theory prescribes, it is to be expected that the principle of segmental autonomy will be fulfilled, enforcing “minority rule over the minority itself in matters that are the minority’s exclusive concern” (Lijphart 1979, 500-01) - i.e., negotiators have to endeavor to outline the frontiers of the sole internal jurisdiction of the groups they represent, which will not be subjected to overall political regulation because it had been agreed that anyone’s particular beliefs shall not be imposed on the separate segments of the rest of the groups. At the same time, a normative core has to be outlined to fulfill the grand coalition principle, which means that, “on all issues of common interest, the decisions are made jointly by the segments’ leader” (Lijphart 1979, 500-01) – i.e., the frontiers of a core of consensus have to be defined in order to specify public matters that all contending groups are concerned with as a whole.

Critics may be suspicious of the ideal outcome that this theory reaches when, simulating the process of discussion that leads to an agreement, it starts from a perfect original position and veil of ignorance. However, they have to realize that not even the most enduring polyarchies neatly match the ideal and some are so much stuffed with irrationalities[1] that they are close to borderline cases[2] – e.g., in the US, these irrationalities have impeded the development of a proper policy to fund primary goods, and the prospects of moving in the right direction are uncertain as the current virulent discussions on the reform of the health care system show. There is another dénouement that may be more appealing to a non-liberal eye. Given the specific kind of irrationalities that may be found in traditional societies due to their own idiosyncrasies, it is possible to anticipate outcomes that, though far from a complete overlapping consensus, reach the stable equilibrium that characterizes a peaceful state of affairs.

Experience shows that this kind of arrangements tend to reach a core of consensus the frontier of which leaves out issues that, in advanced polyarchies, all contending parties tend to be concerned with, being subjected to overall political regulation. For example, in the most long-lived democracy in a developing country, India, a set of personal matters is regulated under the sole concern of the separate segments constituted by the largest ethnical groups, the Hindu (which lawfully includes Sikh, Jaina, and Buddhist religions) on one hand, and the Muslim on the other hand (see Jenkins 2001, Lijphart 1996 and Varshney 1998). Matters like marriage, divorce, succession, inheritance, maintenance, guardianship, adoption, and custody of children are governed by separate laws (see Bilimoria 1998-1999). This has caused Muslim membership to perpetuate what is seen from a liberal viewpoint as oppressive practices, at the expense of personal security normally safeguarded in advanced polyarchies.

Despite institutionalized oppressive practices in India, it has reached a stable equilibrium essential in avoiding warfare. From a liberal viewpoint, this is not the best state of affairs, admittedly, but we cannot still find all the ideal conditions, even in the most enduring polyarchies (the list is long but just think about the condition of women in Japan,[3] citizens with North African background in France, or the uninsured population in the US). The important thing is that the foundations are laid to peacefully undertake the struggle for the fulfillment of a better balance between individuals’ and communities’ claims.[4] Moreover, the coexistence of a traditional community with others less traditional whose separate segments are run in a more progressive way may be a far effective mechanism to trigger a process of change within the former. This leads us to find the necessary channels of communication across cleavages.

Since we are not advocating a mere modus vivendi among groups or subcultures (see Gray 2000), in our view, liberal peace requires effective channels of communication across cleavages (see Lijphart 1968, 23) to progressively cross the perception thresholds of the concerned parties with the aim of motivating a reconsideration of their behavior pattern (see Downs 1957, 86), which ultimately will facilitate processes of change and self-determination. In India were created separate law boards in 2005 on the Shia Islamic sect’s and Muslim feminists’ initiative, as a response to the Sunni Islamic sect-dominated law board that, since 1972, has enforced the Islamic Law Code of Sharia, which only rules on personal matters of Muslims. This act of self-determination, prompted from within the Muslim minority itself, was motivated by what is perceived as discriminatory decisions against Muslim women, among which stands out the case of Shah Bano, a woman who was denied alimony in 1978 (see Benhabib 2002, 91ss. and Bilimoria 1998-1999). It is possible that this act of self-determination would have taken more time to occur if Muslims did not have to live together with the Hindu minority.

Based on the preceding considerations, we can sustain that, as Abizadeh (2002) has put it, liberal peace does not presuppose per se a cultural nation. Some liberals inclined to see liberalism mainly as a metaphysical or epistemological doctrine may be tempted to reject an incomplete overlapping consensus as it might temporally institutionalize oppressive practices currently not tolerated in the most advanced polyarchies. Others may be so used to a familiar core of consensus that might find counterintuitive the outcomes analytically reached when the simulation of negotiations in an original position and behind a veil of ignorance takes place on behalf of different idiosyncrasies, and this may have been the case of John Rawls. This can get political liberalism as such mixed up with the conservative and orthodox models of liberal peace, which are driven by a “one model fits all” methodology intending to replicate an idealized Western democratic peace (see Willett 2006, 2; also Richmond 2007, 5).

Sure enough, peacebuilders have to decide on the kind of incomplete overlapping consensus that would be tolerable; yet, in doing so, they have to be careful not to close the door to enable liberalism to thrive in more traditional societies which, after a long process of experimentation with democratic deliberation, may finally span the core of consensus in order to include sensitive matters. In looking for a solution to the balance between individuals’ and communities’ claims, human security can be an obstacle, unless it is properly qualified. To do so, it is essential to embrace liberalism as a political rather than as a metaphysical or an epistemological doctrine (see Rawls 1985) for a key move to achieve lasting peace in deeply divided societies is to put traditional communities in a position to make their own viewpoints.

III. CONCLUSION

To offer a solution to the balance of individuals’ and communities’ claims, the idea of human security has to be qualified by political liberalism, the deductive approach of which is essential as it provides the big picture that an open-ended inductive approach to peacebuilding lacks. Political liberalism properly illustrates how different comprehensive doctrines organize themselves to overcome cleavages, so that more or less diverging interests are satisfied without privileging one over any other. In their way to a peaceful state of affairs, contending communities have to endeavor to fulfill the principle of segmental autonomy, outlining the frontiers of the sole internal jurisdiction of each group, which will not be subjected to overall political regulation because it had been agreed upon that anyone’s particular beliefs will not be imposed on separate segments of the rest of the groups. At the same time, the grand coalition principle has to be fulfilled by means of the definition of the frontiers of a core of consensus, which specifies the public matters that all contending groups are concerned with as a whole.

Peacebuilders have to take care to avoid embracing liberalism as a metaphysical or epistemological doctrine rather than a political one. Otherwise, they may be prompted to reject outcomes that, though securing a stable equilibrium essential to avoid warfare, might turn out to be counterintuitive, as the negotiations on behalf of different idiosyncrasies can reach an overlapping consensus that privileges community security over personal security, institutionalizing what from a liberal viewpoint are oppressive practices. While this is not the best state of affairs, it can pave the way for liberalism to thrive in more traditional societies.

alejandro.agafonow@uab.cat

REFERENCES

Abizadeh, Arash. 2002. Does Liberal Democracy Presuppose a Cultural Nation? Four Arguments. The American Political Science Review, 96 (3): 495-509.

Begby, Endre and J. Peter Burguess. 2009. Human Security and Liberal Peace. Public Reason, 1 (1): 91-104.

Benhabib, Seyla. 2002. The Claims of Culture. Equality and Diversity in the Global Era. Princeton: Princeton University Press.

Bilimoria, Purushottam. 1998-1999. Muslim Personal Law in India: Colonial Legacy and Current Debates. The Islamic Family Law Project. Emory Law School. http://www.law.emory.edu/ifl/cases/India.htm#01 (accessed July 20, 2009).

Downs, Anthony. 1957. An Economic Theory of Democracy. New York: Harper & Row Publishers.

Gray, John. 2000. Two Faces of Liberalism. New York: The New Press.

Guerrien, Bernard. 1998. La Microeconomía. http://www.eumed.net/cursecon/libreria/bg-micro/ (accessed January 25, 2009).

Jenkins, Laura Dudley. 2001. Personal Law and Reservations. Volition and Religion in Contemporary India. In Religion and Personal Law in Secular India: A Call to Judgement, ed. Gerald James Larson, 104-23. Bloomington: Indiana University Press.

Lijphart, Arend. 1968. Typologies of Democratic Systems. Comparative Political Studies, 1 (1): 3-44.

———. 1979. Consociation and Federation: Conceptual and Empirical Links. Canadian Journal of Political Science, 12 (3): 499-515.

———. 1996. The Puzzle of Indian Democracy: A Consociational Interpretation. The American Political Science Review, 90 (2): 258-68.

Morgenstern, Oskar. 1972. Thirteen Critical Points in Contemporary Economic Theory: An Interpretation. Journal of Economic Literature, 10 (4): 1163-89.

Nash, John F. 1950. The Bargaining Problem. Econometrica, 18 (1): 155-62.

Rawls, John. 1985. Justice as Fairness: Political not Metaphysical. Philosophy and Public Affairs, 14 (3): 223-51.

———. 1996. Political Liberalism. New York: Columbia University Press.

Richmond, Oliver P. 2007. Understanding the ‘Liberal Peace’. Conflict In Focus, no. 22 (July), http://www.rccp-jid.org/conflictinfocus.htm (accessed August 31, 2009).

United Nations Development Programme. 1994. Human Development Report: New Dimensions in Human Security. New York: Oxford University Press.

Varshney, Ashutosh. 1998. Why Democracy Survives. Journal of Democracy, 9 (3): 36-50.

Willett, Susan. 2006. Global Security, the Liberal Peace, and Human Security. Economists for Peace and Security Quarterly 18 (4): 1-5, http://www.epsusa.org/publications/newsletter/newsletter2.htm (accessed August 31, 2009).

[1] Unlike neo-classical economics where rationality is defined by complete information, perfect forecast and choice making according to the highest positions in a scale of subjective preference, in the Rawlsian theory, rationality is given by the lack of key information that prevents strategic advantages for the benefit of actors motivated by comprehensive doctrines, as well as a normal risk aversion.

[2] Bear in mind that our borderline cases are not those anticipated by consociationalism as we are qualifying this theory from a Rawlsian point of view.

[3] The United Nations Committee on the Elimination of Discrimination Against Women recently called public opinion’s attention to women in Japan, the world’s second-biggest economy, which ranks 54th in terms of gender equality.

[4] However, like the research program on consociationalism suggests, to undertake a peaceful struggle the majoritarian institutional arrangement of presidential democracies is an obstacle as it allows the underrepresentation of minorities.

© 2010 by Public Reason

Public Reason 2 (1): 85-93

Modus Vivendi, Consensus, and (Realist) Liberal Legitimacy

Enzo Rossi

Social Ethics Research Group

University of Wales, Newport

Abstract: A polity is grounded in a modus vivendi (MV) when its main features can be presented as the outcome of a virtually unrestricted bargaining process. Is MV compatible with the consensus-based account of liberal legitimacy, i.e. the view that political authority is well grounded only if the citizenry have in some sense freely consented to its exercise? I show that the attraction of MV for consensus theorists lies mainly in the thought that a MV can be presented as legitimated through a realist account of public justification. Yet I argue that, because of persistent ethical diversity, that realism problematically conflicts with the liberal commitments that underpin the very ideas of consensus and public justification. Thus, despite the interest it has recently attracted from critics of political liberalism and deliberative democracy, MV is not an option for those wishing to ground liberal political authority in some form of consensus. So if realist and agonistic critiques are on target, then the fact that modus vivendi is not an option casts some serious doubt on the viability of the consensus view of liberal legitimacy.

Keywords: Consensus; legitimacy; liberalism; modus vivendi; realism

A framework for the exercise of political power is grounded in a modus vivendi when its main features can be hypothetically presented as designed and adjusted over time through a virtually unrestricted bargaining process between the competing individuals and groups that make up the society. In this paper I consider whether a political framework[1] grounded in a modus vivendi could or should be appealing to theorists who subscribe to the consensus view of liberal legitimacy, i.e. to the view that liberal political power is well grounded and properly exercised only if it is in some appropriate sense acceptable to those subject to it. I argue that—pace a number of theorists—the idea of modus vivendi is not a viable account of the hypothetical agreement at the core of the consensus view. Moreover, I contend that the genuine appeal of modus vivendi to consensus theorists is symptomatic of a deep structural flaw in the consensus view of liberal legitimacy.

Crudely put, the attraction of the modus vivendi-approach for liberal consensus theorists can be understood as lying mainly in the idea that the agreement it envisages may be seen as more legitimate than the heavily moralized idea of an overlapping consensus of reasonable doctrines, in so far as it allows the consenting parties to resort to their actual values and commitments and to express them without restrictions. In the parlance of contemporary consensus theories of legitimacy, then, we may say that modus vivendi could be presented as enjoying legitimacy through public justification.

In this paper I discuss exactly how one may construe a conception of public justification that can present a modus vivendi-based political framework as legitimate—a move that aspires to retain the voluntarisic elements of the consensus view alongside a more realistic understanding of what constitutes a political consensus. However, I will argue that those desiderata cannot ultimately be reconciled: despite the pressing need to accommodate realist instances within liberal legitimacy theory, the idea of modus vivendi does not offer a viable internal corrective for consensus-based accounts of the foundations of liberalism. So the interest that modus vivendi has recently attracted from liberal realists, agonistic deliberative democrats and other critics of political liberalism is misplaced: modus vivendi is not an option for those wishing to ground liberal-democratic political authority in some form of consensus.

The paper is in four sections. Section 1 provides some background and anticipates some of my conclusions, in order to clarify the place of my argument in the wider context of current debates on the foundations of liberalism. I then provide a new, detailed account of the idea of modus vivendi, and of how it can be deployed to construe to what I will call a ‘realistic’ conception of public justification (section 2). I argue that, however, modus vivendi is unable to satisfy the desiderata of a liberal theory of public justification, and hence is not a promising option for liberal consensus theorists (section 3). These points lead to some more general remarks about the significance of my critique of the modus vivendi-based account of liberal consensus for the overall prospects of the consensus view of liberal legitimacy (section 4).

1. Liberal Realism, Agonism, and Modus Vivendi

The consensus view of liberal legitimacy is familiar, but a brief characterization of it will be necessary to set the stage. The paradigmatic advocate of the view is, of course, John Rawls. In Political Liberalism he writes:

Our exercise of political power is fully proper only when it is exercised in accordance with a constitution the essentials of which all citizens as free and equal may reasonably be expected to endorse in the light of principles and ideas acceptable to their common human reason. This is the liberal principle of legitimacy. (1993, 137, emphasis added.)

The basic idea is that a well-grounded political framework need not just embody liberal values; for political power to be properly exercised we also need a freely developed consensus. That consensus is established through the ideas of public reason and public justification:[2] publicly justified principles are acceptable to reasonable citizens (on an adequate characterization of reasonableness), and thus can be presented as enjoying the free hypothetical consent of the citizenry, which in turns confers legitimacy upon liberal political arrangements.[3] That is the sort of (hypothetical) consent relation I discuss here. Finally, by “free’ consent”—as opposed to consent simpliciter—I understand a form of consent that is based on the exercise of the consenting individuals’ personal autonomy. “Personal autonomy” should be understood as an umbrella term here: rather than in its original Kantian sense,[4] I use the term as a placeholder for all the typical foundational commitments of contemporary liberalism (a conception of persons as free and equal, a notion of human flourishing, etc.). Those commitments explain how a consensus can carry normative force, and are thus used by different theorists to motivate their adherence to the consensus view of liberal legitimacy.

In order to understand the relevance of the problem at stake in this paper within the contemporary debates on the foundations of liberalism we may start from the idea that the liberal political framework is best grounded simply as a morally neutral medium for the adjudication of disputes between competing interests and conceptions of the good—a thought that seems to lie at the heart of many critiques of Rawlsian approaches to liberal legitimacy. In fact many theorists defend modus vivendi-like accounts of the foundations of political authority as a reaction to what they regard as an excessive distance between Rawls’ heavily moralised prescriptions for the conduct of political deliberation and the actual political practice of most contemporary liberal democracies.[5] These complaints register a certain dissatisfaction with the restrictions Rawls places on the deliberative process in order to safeguard the liberal normative commitments of freedom, equality and autonomy; in other words, they accuse Rawls of ‘rigging’ the deliberative process to ensure a liberal-friendly outcome. This worry has been poignantly formulated by Thomas Nagel:

Part of the problem is that liberals ask of everyone a certain restraint in calling for the use of state power to further specific, controversial moral or religious conceptions—but the results of that restraint appear with suspicious frequency to favor precisely the controversial moral conceptions that liberals usually hold. (1987, 216)

That is what one may call the ‘agonistic’ or ‘radical democratic’ critique of political liberalism and other similar accounts of deliberative democracy.[6] For instance, while remaining committed to a view that grounds liberal democratic legitimacy in the participation and allegiance of the governed, Chantal Mouffe writes:

If both Rawls and Habermas, albeit in different ways, aim at reaching a form of rational consensus instead of a simple modus-vivendi or a mere agreement, it is because they believe that, by procuring stable grounds for liberal democracy, such a consensus will contribute to securing the future of liberal democratic institutions. (2000, 9)

Yet, she argues, they are mistaken because securing allegiance to a liberal democratic polity “is not a matter of rational justification but of availability of democratic forms of individuality and subjectivity. By privileging rationality, both the aggregative and the deliberative perspective leave aside a central element, which is the crucial role, played by passions and emotions in securing allegiance to democratic values.” (2000, 10) However my argument will show how Mouffe’s agonistic position misses the point that the moral and epistemic restrictions placed by Rawlsian political liberals on the deliberative process do not just aim “to establish a close link between liberal values and democracy”, but they also—and more importantly—aim to safeguard the very values that motivated the adherence to a consensus or allegiance-based account of legitimacy. So in a way Mouffe is right in criticising Rawls (and Habermas) because “their move consists in reformulating the democratic principle of popular sovereignty in such a way as to eliminate the dangers it could pose to liberal values” (2000, 3). That (serious) problem may be solved by adopting a looser, modus vivendi-like approach to public deliberation (as Mouffe in fact recommends); yet, as we will see, doing so would also jeopardize the voluntarism that underpins any consensus-based account of the legitimacy of a liberal polity—hardly an overall improvement.

Similar lines of argument can be found in the debates about the role of religious arguments in political deliberation:[7] critics of Rawls often argue that democracy cannot fully deploy its normative efficacy if we place (normative) constraints[8] on political activity to the extent that some individuals and groups will be prevented from deliberating about certain policy matters by referring only to values which, according to their conception of the good, are directly and sometimes pre-eminently relevant to an assessment of the issues at stake. Summarising and elaborating on some such views, Philip Quinn writes:

So I am skeptical about there being any assured real (as opposed to merely possible) costs associated with being guided by Perry’s inclusivist ideal rather than the Rawlsian ideal of public reason. And if there are none, the inclusivist ideal is more attractive than its rival because, being less restrictive, it allows all citizens to express themselves and their deepest values more fully in the political sphere ( . . . ) Adams suggests that “Rawls underemphasizes the combative aspects of a democratic polity and tends to overestimate the level of theoretical agreement in political ethics needed for an attainably just society.” I concur. Of course we let ourselves in for something more like debate than like dialogue on many issues if we adopt the inclusivist ideal, but I consider that no bad thing when there is disagreement in a pluralistic democracy. (1995, 35)[9]

Quinn and Perry’s claims clearly resonate with the realist idea that we should keep normative theory closer to actual politics.[10] And it seems plausible to interpret those claims as relying at least in part on the normative force of a process of deliberation that allows for the unconstrained will of the citizenry to be instantiated in the political framework—a way of claiming that the liberal political framework is legitimate because it is the object of a consensus.[11] Those liberals may or may not explicitly or unambiguously defend a modus vivendi account of consensus-based legitimacy. But I maintain that some of their criticisms of political liberalism commit them to such a view: in sections 2 and 3 below I will argue that there is no middle ground between modus vivendi and the Rawlsian view, as any significant attempt to lighten the moral restrictions Rawls places on the hypothetical deliberation process turns the consensus into a modus vivendi, which defeats the purpose of invoking a consensus in the first place.[12]

More generally, the appeal of modus vivendi as an alternative to mainstream consensus-based liberal legitimacy resonates with ‘realist’ political theorists such as John Gray, John Horton, Glen Newey, and Bernard Williams, many of whom explicitly embrace the idea of modus vivendi, and all of whom lament the conceptually unsustainable precedence afforded to morality over power dynamics by contemporary liberal legitimacy theory—the foremost example of this problem being, of course, Rawlsian political liberalism: [13]

This points to a feature of real political stability which, I believe, has been seriously neglected by Rawls and other deliberative democrats who seem to think that a law or policy will necessarily be more acceptable to its opponents if it is the outcome of process of political deliberation conducted in accordance with public reason. [However] In some circumstances it is more important that the outcome be seen on all sides as a rough and ready compromise in which all
the parties have been given something and each has made
concessions. Rawls regards this kind of process as ‘political in the wrong way’. ( . . . ) However, a modus vivendi need not be an arrangement entirely devoid of a moral dimension. It does not have to be understood, as Rawls presents it, exclusively as an unstable balance of forces (Rawls, 1996: 432-3); rather it is a mix of morality and power. (Horton, 2003, 22)

So, by analyzing how the idea of modus vivendi can be deployed (as an alternative to Rawls’ “overlapping consensus”) to correct what is often considered a weakness of the legalism and moralism of political liberalism, I will provide a new angle from which to systematize and make sense of those critiques.

Of course, some proponents of modus vivendi will not be interested in deploying that idea to ground liberalism; rather, they will see it as an external corrective to the liberal moralism.[14] In other words, they will ground political authority by replacing liberal legitimacy theory with an account of modus vivendi, perhaps because they maintain that prudence should take precedence over morality when assessing the normative status of political authority. My argument does not directly engage with that position—nonetheless it clarifies the differences between those two takes on the idea of modus vivendi.

2. Modus Vivendi and Public Justification

The idea of modus vivendi has come to the fore through Rawls’ discussion of it in Political Liberalism. The rough characterization of modus vivendi I offered at the outset of the paper is roughly equivalent to Rawls’ widely known definition of modus vivendi: “A consensus on accepting certain authorities, or on complying with certain institutional arrangements, founded on a convergence of self- or group interests.” (1993, 147) Rawls contrasts prudentially-motivated modus vivendi with the idea of an overlapping consensus, which is an agreement underpinned by moral (primarily, but also by epistemic) reasons that are in line with an appropriately specified conception of liberal citizenship. To spell out this point, I propose a more precise characterization of modus vivendi as an agreement establishing a stable political framework in which at least one—but typically most—of the parties (i.e. a sizeable minority) participate for non-moral and non-epistemic reasons, i.e. (typically) prudential reasons, or for reasons that are not compatible with a liberal conception of citizenship.[15]

That characterization of modus vivendi could strike some as rather different from what is perhaps the most articulate such characterization in the literature, namely the one recently proposed by Gerald Gaus:

Agreement X is a modus vivendi between agents A and B if and only if:

X promotes the interests, values, goals etc. of both A and B;

X gives neither A nor B everything they would like;

The distribution of the gains of the compromise (how close X is to A or B’s maximum reasonable expectation) crucially depends on the relative power of A and B;

For both A and B, the continued conformity by each to X depends on its continued evaluation that X is the best deal it can get, or at least that the effort to get a better deal is not worth the costs. (2003, 59)

However, the differences lie more in the definiens than in the definiendum, as both definitions pick out roughly the same sort of agreements; the differences, then, are given by the fact that while Gaus focuses more on the goods and interests promoted by a modus vivendi agreement and on its being affected by the differences in bargaining power between the parties, I focus on the reasons the parties have to subscribe to a modus vivendi.[16] The focus on motivation is important if, like Rawls, we are interested in the view that the agreement (rather than the values and interests it promotes) confers legitimacy.

To present the idea of modus vivendi less abstractly, we may simply think of a number of parties with different preferences: they reach a modus vivendi whenever they reach an agreement (leading to a stable political framework) without constraints on the sort of reasons that can motivate the parties to accept the terms of the agreement. The idea is that a modus vivendi maximizes the satisfaction of the preferences of each party, subject to the constraints given by the relative bargaining power of the parties. It is also important to note that the political framework should satisfy the condition of political stability (understood in the ordinary sense—a condition of social peace enabling reliably regulated social cooperation—rather than in the morally laden, Rawlsian sense of ‘stability for the right reasons’): if this constraint were not in place, on my definition just about any political arrangement could be characterized as a modus vivendi (thus making “modus vivendi” almost synonymous with “the course of history”), for any given situation, including one of anarchy, could be presented as the outcome of hypothetical bargaining between the parties involved in it.[17]

Now how exactly can modus vivendi connect to the idea of public justification? The term ‘consensus’ employed in Rawls’ definition suggests an answer to that question. Public justification is the liberal consensus theorist’s response to what one may call the challenge of persistent ethical diversity: under the conditions of freedom brought about by the political frameworks naturally favoured by consensus theorists, citizens develop an extensive array of diverse and diverging conceptions of the good. What is more, this diversity is persistent to the extent that it becomes virtually impossible to identify, or hope to identify in the foreseeable future, a justificatory account of the basic structure of society that is (directly) acceptable to all—or even most—of the citizens’ private[18] normative standpoints. The project of public justification, then, aims to overcome the challenge of diversity without renouncing the goal of consensus; it does that by offering an alternative standpoint, a public standpoint that enables us to reach some kind of consensus about what the basic structure of society should look like. The idea is to construe public reason in such a way that it can be shown that citizens have reason(s), from the standpoint of their private outlooks, to adopt a public outlook when deliberating about the basic structure of society. Of course, divergences arise among public reason theorists as to what kind of reasons there might be for adopting the public standpoint: roughly, on what I call an idealistic conception of public justification they will be mostly moral and epistemological reasons, whereas on a realistic conception they will be predominantly pragmatic and prudential—hence the connection with realist and agonist accounts of liberal democracy.

So modus vivendi can be understood as a consensus-based account of the foundations of political power if we construe a conception of public justification that produced the sorts of agreements described by the definition of modus vivendi offered above. I say that it can be understood as a version of the consensus view, rather than saying that it is a version of that view, because one can of course also defend a modus vivendi-grounded political framework on the basis of considerations other than the foundational role of the relation of consent between government and governed. The idea here would still be that the basic structure of society should be shaped by a consensus; the difference, however, is that this arrangement is not required in order to characterize a particular relation between government and governed, but rather because those political arrangements safeguard and promote certain goods (e.g. social peace, stability, human rights understood as interests, and so on).[19] This may well be a promising line of argument, but exploring it would be beyond our scope here. What we need to show, on the other hand, is how a modus vivendi account of political legitimacy can be connected to a version of the realistic conception of public justification.

To answer that question, let us put the points we have just seen in Hobbesian terms (for, as shown by David Gauthier’s work on public reason, those terms are especially appropriate when presenting a realistic account of public reason[20]): the use of private reason in deliberation about the political framework leads to social conflict (a point famously stressed by Hobbes: crudely, left to their own devices, people conflict), making it impossible to identify stable terms of political cooperation and peaceful coexistence. In societies with persistent ethical diversity the justification of the political framework will have to be a public one, i.e. one which is able to transcend the divergences of citizens’ private conceptions of what values should inform the design of a political framework. Hence the Hobbesian spirit of the realistic conception of public reason: public reason is just a way of reasoning we adopt for the purposes of agreeing on how to live together in a political system. The content of the ideal of public reason, i.e. the rules for the adjudication of political controversies, does not really matter much, as long as it enables peaceful political coexistence. Anything goes, as long as it secures agreement and stability. In other words, on this strategy we are taking citizens as they really are, in the sense that we construe public reason on the basis of general normative commitments that are actually available to the citizens.

To better identify the defining traits of the realistic conception of public reason, contrast it with a more idealistic, Kantian, one. The idea here would be to take a standpoint that ought to be accepted by all. Private standpoints are not like that (because of our moral and epistemological idiosyncrasies), thus we should strive to find a public one. This is true both at the epistemological level (e.g. “use reasons that are intelligible to others/comply with epistemological standards that are acceptable to others”) and at the moral level (“make on others only claims that can be justified to them”). Often the two levels are combined in a set of mixed epistemological and moral criteria.[21] In contrast to the realistic strategy, the idealistic strategy takes citizens as they would be, were they committed to certain (moral and/or epistemological) values, i.e. it takes citizens as they should be: public reason is construed on the basis of normative commitments the citizens should have, regardless of whether they are actually available to them.[22]

Of course, the realistic and the idealistic conceptions of public reason as I have just presented them are pure types; the actual conceptions found in the literature often try to include elements of each type. But what this taxonomy shows is how each pure type embodies one crucial desideratum for the project of establishing free hypothetical consent through public justification: the realistic conception embodies the pragmatic desideratum, whereas the idealistic conception embodies the moralistic desideratum. The pragmatic desideratum requires that hypothetical consent to a publicly justified set of principles regulating the political framework be a concrete possibility—something feasible given the citizenry’s actual motives, beliefs, and desires. On the other hand, the moralistic desideratum stresses that, for consent to retain its legitimating force, it should be given without violations of the personal autonomy of the consenting individuals.

That shows how the idea of modus vivendi connects with the realistic conception of public reason (and how it cannot connect with the moralistic conception). The (Hobbesian) idea here is to construct public reason in such a way that it requires us to transcend or bracket elements in our private system of values, in our private reason, to the extent where we can find enough common ground (probably through our ‘self- or group interests’) to come to a settlement guaranteeing peaceful political coexistence. The medium—indeed any medium—that enables the citizens to take the standpoint leading to such a consensus is indeed the Hobbesian public reason. There are no restraints on this process of transition from private to public reason. The consensus is still hypothetical (actual consent is chimerical, as most contemporary consensus theorists recognize), but it is just, as it were, one layer of hypotheticalness, in the sense that the consenting individuals are not the actual citizens but their counterparts (because the actual citizens will typically not be directly asked for their express agreement), yet they are not idealized to the point where the sources of their normative commitments may be fundamentally different from those of the actual citizens. So, if a modus vivendi over liberal institutions can be found, hardly anybody will be excluded from the consensus.

These considerations also show in what sense we can say that constructing public reason through a modus vivendi is a way of responding to the pragmatic desideratum of theories of public reason: the thought is that a modus vivendi-based agreement will ensure that the hypothetical consent secured by the agreement will be the consent of the actual members of the society, not of their epistemically and/or morally idealized counterparts. However, the achievement of meeting the pragmatic desideratum comes at a rather high cost, as I shall argue in the next section.

3. Agreement, Autonomy and (Liberal) Legitimacy

In this section I will discuss what I regard as a serious problem affecting the modus vivendi-based approach to public reason. As we have seen, the approach obviously has advantages, and indeed not just advantages: it addresses a vital concern of the consensus theory of liberal legitimacy, namely the need for pragmatism. However, in a nutshell, the serious problem is that the sort of consensus reached through a modus vivendi is incompatible with a crucial desideratum of the consensus view of legitimacy, i.e. grounding political power in a way which is respectful of personal autonomy. On the modus vivendi approach to public justification, all that counts is the fact of stable agreement to a set of rules regulating the political framework. But then any concern for how that agreement came about (at gunpoint, under the effect of propaganda, and analogous situations) becomes secondary, if not entirely irrelevant. Now that, of course, is a problem because liberal consensus theorists are—with good reason—interested in free consent (i.e. consent which preserves the consenting individual’s personal autonomy), not just any kind of consent.[23]

But the problem is that the modus vivendi strategy is introduced precisely because, under conditions of persistent ethical diversity, there is no agreement of that kind. That is to say, it is introduced in order to address the pragmatic desideratum. The modus vivendi strategy tries to produce that agreement by relaxing the standards of what is legitimate, i.e. what counts as freely consented to, but that does not seem a good move for someone committed to the consensus view of liberal legitimacy. As we have seen, the appeal of the consensus view lies in the fact that it allows the grounding of political power in a way which is respectful of personal autonomy (hence the natural link with liberalism)—an idea which has been well expressed by Jeremy Waldron: “If the rule is one that the citizen has agreed to, surely little that is important in relation to liberty is lost if it is subsequently enforced against him.” (1987, 133) But surely if it is not guaranteed that consent results from of a free (albeit hypothetical) choice, its appeal for liberal consensus theorists quickly melts away.

So it seems that, while the combination of modus vivendi and the realistic approach to public reason could prima facie appeal to those realist or agonistic consensus theorists who want to “take people as they are”, it is the very pragmatism of this approach which, in a context of persistent ethical diversity such as that characterizing modern liberal societies, condemns it to sanctioning outcomes or procedures those same theorists cannot consider up to the standards of liberal legitimacy.

To further clarify that point it is worth noting how, in my reading of Political Liberalism, Rawls’ rejection of modus vivendi is motivated by considerations similar to the ones I offer here: modus vivendi does not guarantee a legitimate political framework because it may sanction agreements that violate citizens’ personal autonomy. This interpretation may appear somewhat controversial. In fact, many commentators[24] have thought that Rawls’ argument against modus vivendi is a pragmatic one (something along the lines of “modus vivendi is the product of a contingent balance of power between competing parties, therefore it is bound to collapse sooner or later”); but in my view it is not—there might be a minor pragmatic side to the argument, but surely it is not its crux. Rather, it is a moral argument, because Rawls uses “stability” in a moral sense (he talks of “stability for the right reasons”, i.e. a situation in which citizens are motivated to comply with the norms regulating the political framework by appropriate considerations of political morality that do not infringe on their “status as free and equal citizens”—or, in my terminology, on their personal autonomy). Rawls, as a liberal consensus theorist, is not interested in mere agreement. He is interested in an agreement between free and equal citizens, which cannot take place at gunpoint or in any circumstances curtailing the autonomy of the consenting parties. So, if my reading of Political Liberalism and my critique of modus vivendi-based accounts of liberal legitimacy by consensus are correct, it follows that Rawls is right in maintaining that nothing short of an overlapping consensus is needed to meet the desiderata of the consensus view of liberal legitimacy. But that should by no means be taken as a defence of Rawlsian liberal legitimacy theory against other, broader uses of the idea of modus vivendi. The point here is that those who wish to embrace modus vivendi to reject Rawls’ moralism and legalism should also abandon the measure of (hypothetical) voluntarism that is constitutive of the consensus view of liberal legitimacy.[25]

As anticipated in the introductory section, in a number of debates within liberal-democratic theory the claim is often advanced that Rawls’ account of what counts as a free consensus is needlessly restrictive and too morally laden. To have a closer look at a good example of this kind of position,[26] and one of the most explicitly worked out ones, let us consider Claudia Mills’ critique of Rawlsian political liberalism. Mills is explicitly committed to both liberalism and to the view that the source of political legitimacy is an agreement or a consensus between those subjected to the exercise of political power. Yet she also takes issue with the sort of moral demands Rawls places on what counts as a free consensus (i.e. as the proper form of endorsement of the principles characterizing the political framework):

I argue that if we look at what Rawls wants for liberalism compared to what he thinks we get from a modus vivendi, we will find that he can get what he wants more easily than he thinks. In fact, Rawls himself provides a persuasive story for how the kind of endorsement he wants for liberalism can grow out of a modus vivendi, without any invocation of an overlapping consensus. Where he goes wrong, I argue, is in overestimating the importance to stability of a shared allegiance to principles and in underestimating the importance of a shared history of living together. (2000, 192)

One of the problems here has to do with our earlier discussion of ‘stability for the right reasons’: like many other critics of political liberalism, Mills does not fully acknowledge the moral dimension of the Rawlsian notion of stability. It is certainly possible that principles that make peaceful coexistence possible will in a sense be endorsed by the citizenry (“Our endorsement of the rules was based first and foremost on the pragmatic consideration that they worked. ( . . . ) We then value the principles in large part because they make it possible for us to live together” (2000, 201-2)), yet it is not the sort of endorsement that should be considered appealing by those committed to the consensus view. To be fair, Mills is aware of the fact that her position abandons the voluntarism that characterises the consensus view:

It may be that Rawls downplays allegiance to history, culture, and place and lays stress instead on shared allegiance to principles because he believes that the latter can be voluntary in a way that the former cannot and that social contract theories as a group seek to establish the way in which our consent to governmental authority is free. (2000, 202)[27]

Nonetheless she maintains that stability can make up for that loss: “But while history, culture and place do not fit well with the voluntarism typical of social contract theorists, they do serve well to establish the kind of stability Rawls claims to be seeking.” (2000, 203) Except that, as we have seen, that is not the stability Rawls seeks. More importantly, Rawls has good cause to seek “stability for the right reasons”, for if the agreement tasked with grounding legitimacy is not a free one why would one think that it had any (or enough) normative force? If liberals commit to the view that citizens’ consent is the source of legitimacy it must be because they think that consent can be based on the exercise of the citizens’ freedom and autonomy—hence the inescapable need for the sort of restrictions Rawls places on what counts as consent. And, as we shall see below, invoking the substantive virtues of stability cannot make up for a lack of voluntarism within a consensus-based account of legitimacy.

At this point it is worth considering some lines of reply to the argument I advanced so far. Could a modus vivendi consensus theorist not reply that all her theory needs in order to become immune to my criticism is a simple and innocuous restriction on the deliberative processes sanctioned by modus vivendi, such as a rule prohibiting the use of coercion? Surely, she may argue, one does not need thick and controversial moral notions in order to have a deliberative process respectful of the citizens’ personal autonomy. However, it is my contention that this line of reply is not satisfactory because, if we consider carefully enough what is needed in order to cash out such a restriction in a way that will prove strong enough in order to safeguard the citizens’ personal autonomy now and in the foreseeable future (as required by the moralistic desideratum of the consensus-based view of liberal legitimacy), we will come to realize that we need a set of normative commitments of comparable weight (i.e. moral ‘thickness’) to those embodied—for example—by Rawls’ notion of “reasonableness”. Rawls does not explicitly make this claim or provide an argument for it, but it is possible to supply one by noting that is not enough, for the moralistic desideratum to be satisfied, that free consent be possible—it has to be guaranteed. It may very well be the case that in some societies, as a matter of fact, conditions are such that a free consent-friendly modus vivendi is possible for the time being. But on the consensus view of liberal legitimacy the citizens’ personal autonomy cannot be left hostage to the circumstances (e.g. a critical increase in the popularity of intolerant ethical outlooks, and the like). A good theory of liberal legitimacy needs strong constraints in order to make sure not only that our deliberation procedure guarantees free consent given the present level of ethical diversity, but also that it will continue to do so in the foreseeable future. Successful normative legitimation should be immune from contingent shifts in political leverage. The idea is that if we look at a liberal, freely consented to, regime now and conclude that it is legitimate because it is a modus vivendi, we will be at a loss of arguments to denounce it as illegitimate if at some point in the future changes in the equilibrium of power or the level of diversity within it (say) will yield changes in the design of the political framework to the extent that the basic structure of that society will stop enjoying the free consent of the citizenry. But if we do have to go down this path of thick procedural constraints, surely the inclusiveness of modus vivendi (and hence its ability to satisfy the pragmatic desideratum) will be lost.

To reinforce that point, recall how Rawls maintains that only the consent of reasonable citizens is needed in order to secure legitimacy. In this way he restricts the deliberative process, ensuring that it will be conducted in a way that is respectful of the citizens’ personal autonomy, for reasonable citizens are indeed “persons engaged in social cooperation among equals”, and they “desire for its own sake a social world in which they, as free and equal, can cooperate with others on terms all can accept” (1993, 48-50). In my view, this sort of restriction makes it rather unlikely that political liberalism will satisfy any sensible formulation of the pragmatic desideratum of the consensus theory of liberal legitimacy, for it is far from clear that the boundaries of reasonableness are not set arbitrarily—but that is not our concern here.[28] We should instead note that Rawls’ restrictions on the deliberative process are deliberately engineered to be as ‘thin’ as is compatible with ensuring the safeguard of citizens’ personal autonomy (hence, in short, the well-known distinction between moral and political values, and the scope restrictions on the bindingness of his prescriptions, which only apply to public discourse on the basic structure). That shows that, as I have been arguing, should the modus vivendi consensus theorist try to ensure the autonomy-friendliness of the deliberative process, she would have to put in place rather severe restrictions; and as a result of those restrictions the modus vivendi would indeed morph into an arrangement not very different from Rawls’ overlapping consensus.

Here one might object that modus vivendi could at least be seen from a historical point of view as an instrument for eventually bringing about the sort of consensus envisaged by the liberal legitimacy view.[29] If we cannot have the overlapping consensus right now, the objection goes, let us support a modus vivendi, as it will eventually lead to the emergence of a liberal overlapping consensus between free and equal citizens.[30] In other words, modus vivendi may not be legitimate as such, but it is the path to legitimacy. In light of our analysis we could respond in at least two ways. First, this objection is somewhat off the mark: we are after all considering simply whether modus vivendi arrangements could count as legitimate according to the consensus view of liberal legitimacy, not how legitimate political arrangements might arise. Second, and more importantly, it is far from clear whether any modus vivendi is likely evolve into a form of hypothetical agreement of the sort sanctioned by the consensus view of liberal legitimacy. With regard to this, Richard H. Dees convincingly showed that “the story that Rawls tells [about the emergence of overlapping consensus from modus vivendi] is sketchy, but its unspoken optimism belies the deep problems that such a transformation involves.” More specifically, Dees argues that for the transformation to take place the parties to the conflict need to come to regard toleration as a value per se; historical examples, however, show how that is by no means guaranteed to happen, or indeed even likely: “whether toleration can be justified in a way that the parties to such deep conflicts can accept will depend crucially on contextual features” (1999, 667-668),[31] which are difficult to pick out. Thus, if consensus theorists want to defend modus vivendi as the path to legitimacy, they cannot do it abstractly: they face the arduous task of providing a case-by-case account of how, in a given context, it is likely that the modus vivendi will evolve into a consensus between free and equal citizens.

I conclude this section by considering another line of reply that could tempt those wishing to combine modus vivendi and the consensus view of liberal legitimacy. At least, they may argue, securing a political settlement produces stability, social peace, and so on.[32] What is more, they may add, at least in some circumstances these values are to be prioritized. This claim may be read in two ways: one the one hand one may argue that peace and stability are goals that actual citizens desire (simply because peace is necessary for the pursuit of most other goals one may have), thus securing them through a modus vivendi amounts to obtaining a consensus. But that argument is still open to the earlier critique that it does not safeguard the foundational commitments (such as autonomy) that underpin the recourse to the consensus view. On the other hand the argument could rest on the intrinsic appeal of peace and stability. However that would be a departure from the concerns of the consensus view, for it grounds political power entirely on the value of stability, leaving no role to play for consent. The same would be true in the case of appeal to the argument that the possibility of an agreement is likely to track the appropriateness of certain set of rules in a given context, and so on. On those views, then, modus vivendi would ground the exercise of political power through substantive considerations of justification rather than relational considerations of consent: political power would be grounded solely in the fact that the political framework possesses certain valuable features (stability and the like), rather than also in a hypothetical relation of consent obtaining between the government and the governed. Such a substantive justification-based approach might very well be worthwhile in its own right, but it does not help the cause of the consensus view of liberal legitimacy.[33]

4. Consensus, Realism, and Liberal Legitimacy

The analysis of the idea of modus vivendi I carried out here focuses on its prospects as the core of an account of how a political framework could satisfy the desiderata of the consensus view of liberal legitimacy, which is dominant in contemporary liberal theory. This way of looking at modus vivendi may perplex some: after all, many proponents of modus vivendi as an account of the normative foundations of liberalism do not—at least explicitly or intentionally—present their view as a consensus-based account of legitimacy. However, as I have shown, the language usually adopted by these theorists often does imply, or at least allude to, a commitment to the consensus view. Conversely, some realist or agonistic versions of the consensus view do not explicitly propose a modus vivendi, but I maintain that at least some of those views can be subsumed under my account of realist public justification. Yet we have seen that, while a modus vivendi-based theory of legitimacy certainly does satisfy the pragmatic desideratum of the consensus view, it does so at the cost of jeopardizing the moralistic desideratum: given a level of persistent ethical diversity such as that characterizing most contemporary liberal societies, we cannot have a genuinely inclusive hypothetical consensus on the political framework while at the same time ensuring that everybody’s consent will be free in any normatively salient sense. And that is why liberal consensus theorists—or perhaps all consensus theorists—should not rest any hopes on the idea of modus vivendi.

But there is a broader and more important issue—which however can only be briefly canvassed here—that these considerations draw attention to. Even though modus vivendi cannot deliver what consensus theorists need, the issue it tries to address (i.e., to put it crudely, the need to achieve a broad hypothetical consensus grounded in reasons actually available to the citizenry) is a genuine concern for the consensus view of liberal legitimacy (embodied, in fact, by the pragmatic desideratum, which echoes the concerns of agonistic and realist critics of Rawlsian liberalism). And it is far from clear that it is possible to address this issue adequately without falling short of the equally important goal of ensuring that the consensus will be respectful of the citizens’ personal autonomy. Perhaps viability concerns such as those briefly hinted at here have recently led a theorist like John Horton (2009) to retain the ideas of modus vivendi and of a consensus-based account of legitimacy at the expense of the commitment to liberalism (which, on his view, would only be legitimate subject to favourable background conditions). Exploring this interesting new view would take us beyond the scope of this paper; yet the analysis offered here would caution against grounding the exercise of political power in a sort of agreement if one is not also prepared to ensure that the agreement is a freely and autonomously undertaken one. As seen above, Waldron pointed out that voluntarism can preserve freedom despite the exercise of political power; one does not need to invoke pragmatic contradiction arguments to also see that voluntarism does not in and by itself ground the exercise of political power unless it also safeguards freedom and autonomy.[34] The problem, however, is that under conditions of pluralism the safeguard of autonomy has to takes the form of restrictions (such as Rawls’ criterion of reasonableness) on what should count as a normatively justificatory consensus—and those restrictions are, in turn, difficult to justify in light of the initial commitment to a measure of voluntarism.[35]

These considerations suggest a working hypothesis for a critique of the consensus view of liberal legitimacy: have consensus theorists set themselves an impossible task, given the persistent ethical diversity that characterizes liberal polities? If pluralism creates an irreconcilable drift between the moralistic and the pragmatic desideratum, then the prospects of the consensus view of legitimacy as a viable model for the construction of a political framework, rather than a mere regulative ideal, are rather bleak. A related and somewhat less pessimistic line of inquiry may simply seek to establish what—if any—are the empirical conditions under which the consensus view will be feasible. However, on the consensus theorists’ own account of the connection between liberal institutions and persistent diversity, those conditions seem unlikely to obtain in modern liberal democracies. Thus the critical hypothesis I just sketched may be supplemented with the observation that the consensus view may owe its deficiencies to its historical roots, in the sense that it is only designed to accommodate the relatively low level of diversity found in early modern European societies.

The demise of the consensus view of liberal legitimacy, however, need not coincide with the demise of liberalism. To sketch an even broader research agenda, I would suggest that if modern persistent pluralism makes liberal moral commitments incompatible with the voluntarism of the consensus view, then perhaps liberals would be better off abandoning the idea that legitimacy requires a somewhat voluntaristic consensus. The liberal tradition features many teleological exponents,[36] and thus clearly not univocal as to the need of such a consensus. Securing a free consensus on liberal values requires very demanding procedural restrictions. Indeed, such a consensus-based approach is not merely problematic in its own right; it is also detrimental to liberalism, in so far as it strips liberal values of their justificatory force by turning them into seemingly arbitrary constraints on a consensus-based legitimation process, while neglecting the crucial task of making a direct, substantive case for those normative commitments. In fact, the consensus’ view attitude to substantive justification of liberal political practice is more than just neglect—it is a proscription, insofar as any attempt at explicit justification of the normative commitments informing the procedural restrictions would expose their partiality and controversiality, which the consensus view is bound to deny. Thus a shift away from the consensus view would arguably reinforce our ability to make the case for liberalism.[37]

References

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[1] By “political framework” I mean what Rawls refers to as “the basic structure of society”: “constitutional essentials and basic questions of justice” (1993, 10).

[2] In line with much of the literature, I will use “public reason” and “public justification” interchangeably (unless otherwise specified); to be more precise one may say that the use of public reason is a necessary condition for achieving public justification. The idea of public reason is, of course, rooted in a Kantian approach to political theory. This point has been insightfully articulated by Onora O’Neill (1986).

[3] Other prominent proponents of a similar approach are Gerald Gaus (1996), Charles Larmore (1996, 121-151), Stephen Macedo (1991), and Lawrence Solum (1993).

[4] The other important source for the value of autonomy in the liberal tradition is, of course, J.S. Mill, though he tends to use terms such as “individuality” and “spontaneity”.

[5] For example, defenders of ‘procedural’ (liberal) democracy often use similar arguments in their attacks on ‘deliberative’ democrats such as Rawls. See Cohen (1996).

[6] See, for instance, Mouffe 2000.

[7] For an extensive introduction to these debates, see Audi 2000.

[8] I use the term “normative constraints” to indicate that Rawls does not support political constraints such as restrictions of free speech, even though he does say that unreasonable citizens should be “contained” (1993, 64n; cf. Quong 2004).

[9] Also see Perry (1993).

[10] Cf. Newey (2001, 22-30).

[11] Of course not all arguments in favour of the appeal to religion in political deliberation rest on the consensus view of legitimacy. For example, for David Hollenbach the use of religious arguments in the public sphere should not be curtailed because doing so would jeopardize a nation’s “civic unity”, and, ultimately, “the common good” (1993, 890).

[12] Though it is of course possible to argue for fewer restrictions than Rawls envisages on the grounds that the use of religious reasons does not constitute a violation of fellow citizens’ autonomy: see Eberle 2002, Gaus and Vallier 2009. But those arguments do not concern us here, as they accept Rawls’ moralized conception of consensus and just disagree on the interpretation of some of the values underpinning it.

[13] For an overview of the realist stream in recent political theory (including a discussion of these theorists’ contribution to it) see Galston 2010. Also see Gray 2000, Horton 2003, Newey 2001, Williams 2005.

[14] As I will discuss in section 4, John Horton’s latest work arguably falls within this camp.

[15] This type of motivation for accepting a settlement should not be confused with that of somebody who accepts a political framework for liberal moral reasons—respect for others as free and equal citizens, say—without morally endorsing its contents.

[16] An actual (yet not crucial) difference is that for Gaus all parties to a modus vivendi participate in the agreement for non-moral reasons, whereas I maintain that it is enough that at least one party do so. The thought is that if one agrees to a settlement for moral reasons but those reasons are not reciprocated, then we have something less than what would count as a Rawlsian overlapping consensus, or even as a constitutional consensus (because even the latter requires the parties to consider the institutions and principles agreed upon as good in themselves: Rawls 2003, 158ff. I return to the idea of a constitutional consensus in section 2.).

[17] By identifying modus vivendi ex post the stability constraint also addresses Gaus’ point that modus vivendi cannot count as a publicly justified agreement because its persistence is subject to private judgments on the shifting balance of power (2003, 63-64). That is because a measure of stability (in the ordinary rather than the Rawlsian sense) is built into my definition of modus vivendi. At any rate consensus theorists’ claims about the superior stability of their envisaged consensus have been convincingly undermined by Sterling Lynch (2009).

[18] “Non-public” would be more a more accurate term, as “private” here does not refer to the private sphere of the early liberal theorists (most notably Constant): it is not the domain of life where the state has no right of interference. Rather, it is the cultural background that is exclusive to particular citizens or groups of citizens.

[19] E.g. Haldane 1996, Neal 1993.

[20] See Gauthier 1995 and Ridge 1998. For a historical overview see Ivison 1997. The controversy between Gauthier, Ridge, and Gaus revolves primarily around the issue of how exactly we can distinguish between public and private reasoning—an issue with no direct bearing on this paper’s main argument. Gauthier and Ridge do not discuss the implications of their views for liberal legitimacy theory; however both their positions could be subsumed under my general account of realist public reason.

[21] In Fred D’Agostino and Gerald Gaus’ language, this is “the epistemological-moral view” of public reason (1998, xiii).

[22] Note that those reasons are not primarily the reasons that may be deployed when debating the design of the political framework. Rather, they are the reasons a citizen may appeal to when deciding to accept an agreement about the design of the political framework. As a further point one may note that, if we do not place any restrictions on the reasons one may have for accepting an agreement, one may very well also not restrict the types of reasons and arguments that may be deployed when deliberating about the political framework. The connection between these two levels of unrestrictedness of available reasons is not a logical one, nonetheless it appears to be supported by strong pragmatic reasons: if we want the full bargaining power of the parties to influence the deliberative process, we have reason to allow them to defend their positions in the way they deem to be more effective.

[23] The point here is not the truism that unrestricted bargaining does not necessarily yield liberalism; rather, the point is that even when it does yield liberalism it yields a liberalism that cannot be considered legitimate qua object of a consensus. But that argument does not amount to a defense of mainstream consensus theories of liberal legitimacy: as I will argue, the issues identified by realists and agonists are very pressing, and if they cannot be met then we should seriously question the viability of consensus-based accounts of liberal legitimacy.

[24] See, for example, Scott Hershowitz (2000, 222): “Rawls’s reason for requiring stability for the right reasons as opposed to accepting a modus vivendi rests on his belief that a modus vivendi cannot provide enduring stability”.

[25] I return to that broader point in 3.2.

[26] I briefly discuss other examples in 3.1.

[27] Rawls does offer a causal story of how an overlapping consensus may arise from a constitutional consensus (1993, 158ff), but that story is irrelevant to the normative status of the overlapping consensus.

[28] I explore this point in Rossi 2008. In a nutshell, Rawls presents the challenge of liberal legitimacy by asking “How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable though incompatible religious, philosophical, and moral doctrines?” (1993, xx) He replies that it is possible, as we only need the consensus of reasonable citizens, who in turn are characterized as committed to seeking fair terms of cooperation between free and equal citizens, i.e. as liberals (1993, 48-54). But grounding the legitimacy of a liberal consensus in the normative force of reciprocity and other liberal values makes the consensus redundant. Yet the voluntarism of the consensus was supposed to remove the need for a substantive defense of those liberal normative commitments, which now appear groundless or arbitrary.

[29] This point could be presented as a modified version of Mills’ argument from “shared history” we discussed above.

[30] This is envisaged by Rawls in his discussion of the transition from a constitutional consensus to an overlapping consensus (1993, 158-68).

[31] So Dees shows that the crucial—and very difficult—step is the one from modus vivendi to constitutional consensus (i.e. when toleration starts to be seen as good in itself). That is why I do not discuss constitutional consensus here: once we secure it, we can agree with Rawls that we are on the path to an overlapping consensus (1993, 164ff.).

[32] For this line of argument see Dauenhauer 2000, Haldane 1996, Horton 2006, Neal 1993.

[33] So, to return to the earlier discussion of Mills’ position, if one is interested in grounding liberal legitimacy in a form of consensus adducing such substantive considerations to make up for a lack of voluntarism will not do.

[34] One may say, though, that voluntarism grounds power in so far as it is instrumental to effective social cooperation, or peaceful coexistence, and the like (and that might be another way of reading of Horton’s position). That is a plausible view, but it is a departure from the consensus view of legitimacy, as the normative work would be done by the substantive values of social cooperation and peace.

[35] This point could be considered an instance of “the paradox of positive liberty”. See Carter 2008.

[36] Some of the obvious names here would be Hume, Mill and Joseph Raz.

[37] I wish to thank Sarah Broadie, Rowan Cruft, John Haldane, John Horton, Tim Mulgan, John Skorupski, Leif Wenar and audiences at the Universities of Manchester Metropolitan, Oxford, Swansea and St Andrews for helpful comments on various versions of this paper. My research has been supported by an AHRC Doctoral Award.

© 2010 by Public Reason

Public Reason 2 (1): 94-103

Book Reviews

Israel, Jonathan. A Revolution of the Mind: Radical Enlightenment and the Intellectual Origins of Modern Democracy. Princeton University Press. Pp. 296. ISBN: 978-1-4008-3160-9

Jonathan Israel is not pleased with the state of research into the emergence of modern democratic values. He sets out to fill a “gigantic yawning gap” by tracing ideas such as equality and individual liberty to the Enlightenment and by defending the thesis that a Radical Enlightenment in the 1770s and 1780s created a “revolution in the mind”, which in turn led to the French revolution. This may sound familiar, but in fact the vast literature on the French revolution is “absurdly inadequate”: It is mired either in reductionist Marxist explanations or in postmodern distrust of reason and consequently fails to take into account the intellectual background and how ideas caused events.

Israel supports his thesis with the help of what he calls the “controversialist method”, giving a dramatic account of the Radical Enlightenment locked in a struggle with the “Moderate Enlightenment.” Almost the entire book is devoted to exploring the philosophical differences between these two ideologies, which resulted in the triumph of the radicals. Israel introduced the Radical Enlightenment already in the first volume of a projected trilogy on the Enlightenment, the well received Radical Enlightenment from 2002 where he argued that the foundation of the Enlightenment, and hence of modern democratic values, is to be found in Spinoza. The second volume, Enlightenment Contested came in 2009. A Revolution of the Mind, which originated as the Isaiah Berlin lectures in Oxford, is not part of the trilogy but anticipates themes that will be covered in the third volume.

Displaying an impressive breadth of knowledge, Israel argues that the Radical Enlightenment of Spinoza is carried on by the thinkers of the 1770s and 1780s, notably Diderot, d’Holbach, Paine, and Helvétius. Although the majority of the protagonists in the book are in France where the Radical Enlightenment was strongest, Israel also singles out a great number of radicals in Holland, America, Germany, England, and Scandinavia. On the basis of Spinoza’s monistic materialism, the radicals defend “the core values of modern secular egalitarianism”. These include democracy and equal civil rights, freedom of speech and the press, separation of church and state, sexual freedom, and the liberation of oppressed nations. Enlightenment is the method to shape reality according to these ideals; if people just know the truth, they will eventually do what is right.

Nonetheless, the radicals also support revolution where rights are systematically violated; indeed this is one of the chief differences to the Moderate Enlightenment of thinkers like Montesquieu, Voltaire, and Kant. Based on a support for rationalism and metaphysical dualism, they either reject or are weak in their defence of democracy and equality; they support aristocracy and monarchy, accept war as a necessary feature of international relations, and, Israel argues, suffer from a “Eurocentric superiority complex.” Although these thinkers too supported enlightenment and progress, they promoted gradual reforms and did not favour political revolution. These competing ideologies are explored over chapters on democracy, economics, international relations and moral philosophy as the radicals gradually won out in the period leading to the French revolution. There are occasional forays into social and political events but the bulk of the text is an account of the many radical thinkers and their ideas, not their lives.

Israel is otherwise a supporter of Spinozistic monism but here he proceeds through a strict dichotomy, which causes difficulties. Voltaire and Locke, who are not unreasonably credited with contributing to the rise of civil rights and toleration, fit awkwardly within the Moderate Enlightenment and the same could be said for many others within either of the two teams. Thinkers are also not permitted to be somewhere in between. Take for example Kant whose oeuvre was an attempt at bridging the gulf between opposed philosophical traditions. He was alone, according to Israel, in attempting to bridge the Radical and the Moderate Enlightenment, but even he failed and came down on the moderate side. To make the case that Kant was a Moderate, Israel is forced to make him sound a lot less radical than he was, writing that he is “expressly rejecting democracy.” But by ‘democracy’ Kant, along with most of his contemporaries, had direct democracy in mind, something not even Israel’s Radical Enlightenment supported. Long discussions can be had about Kant’s commitment to popular sovereignty but he certainly did not expressly reject what today is called representative democracy. Likewise, Kant is on record defending the French revolution of 1789, whereas a Radical Enlightener like Herder, who supported a “revolution of the mind,” turned sharply away from the actual revolution.

The book’s main thesis is that the Radical Enlightenment was responsible for the French revolution. Occasionally Israel, who has bones to pick with Marxism and Postmodernism alike, formulates this in bold terms, claiming that “books cause revolution” (as indeed many thought in the 1790s). On closer look, however, he admits that “social grievances” played a part and that the role of ideas is to articulate grievances, providing “grounding” for the revolution. Whether ideas caused the French revolution is a venerable debate, and Keith Michael Baker has identified two main ways of pursuing the claim (1990. Inventing the French Revolution, Cambridge: Cambridge University Press). Some grandly assume a continuous history of doctrines, often based on the ideas of one particular thinker, moving society forward with inexorable logic (was, for example, Rousseau responsible for the revolution?). Others, more empirically, study the diffusion of books and ideas among revolutionaries and their followers (which books and pamphlets were on Robespierre’s bedside table?).

One might think that a careful historian like Israel, who often dwells on minor and overlooked characters, would favour the latter approach. But there is not much in this book about what books and pamphlets motivated the leaders of the revolution and their followers. Mirabeau and Condorcet are discussed, but the names Lafayette, Danton, Lally-Tollendal, Barnave and Sièyes (apart from one mention) do not appear, and there is little discussion of the great parties within the revolution. There are brief mentions of book history, but overall Israel does not dwell on how the ideas of the Radical Enlightenment achieved diffusion in the wider public.

One might think he instead supports the former approach to the problem, emphasizing a grand logic of ideas propelling history, because of his sustained emphasis on Spinoza standing behind the progress of the Western tradition. But this does not seem to match the sense of contingency conveyed by the “controversialist method”, which implies that either side could have won. Eventually, it is difficult to know exactly what Israel means by ideas causing the revolution because the crucial link between thinkers and agents, between the Radical Enlighteners and the revolutionaries is barely explored and there is no deeper discussion about how ideas move minds. This is unfortunate because it significantly lessens Israel’s critique of the existing explanations. Marxists did not deny that radical literature flourished prior to the revolution; they just interpreted it as “superstructure” and held the subsequent events to be better explained by the increasing price of bread.

Israel is probably right that there is a gap in the literature on the emergence of modern democratic values, but filling it requires sensitivity to the complexity of political thinkers rather than a straitjacketing of them into a bi-party system reminiscent of an American election. It also requires a more sustained exploration of how these thinkers influenced political agents. Perhaps Israel himself will tell us more about that in the final volume of the trilogy on the Enlightenment.

Reidar Maliks

The University of Oxford

Voorhoeve, Alex. 2009. Conversations on Ethics. New York: Oxford University Press. Pp. 272. ISBN: 978-0-19-921537-9

Alex Voorhoeve’s book of interviews will prove an excellent document of the prevailing attitudes and standards that ruled moral philosophy at the beginning of the new Millennium. A number of eminent figures in Anglo-American philosophy, along with a few leading psychologists and economists with contributions that are particularly relevant to the field of ethics, are challenged to have “a frank discussion of some of the strengths and weaknesses of their ideas”, in terms that are relatively “accessible to a non-specialist audience” (vii). Having in mind Socrates’ warning from Phaedrus about the “orphan” nature of any written discourse, the author of these interviews is not only focusing on their main ideas and decisive arguments, but also tries to give us “a real sense of the human beings behind the writings”, as Jonathan Wolff put it, addressing to the influential thinkers that are interviewed provocative questions about their intellectual development and the reasons that drove them into moral philosophy. Every discussion is preceded by a concise and accessible presentation of the central theoretical preoccupations of the approached thinker and it is followed by key bibliographical references regarding the conversation that took place. Explanatory footnotes about the more technical expressions used in the conversation, along with short explanations of some intricate thesis, are also inserted. We could say that Voorhoeve has a real gift for detecting the vulnerable parts in any thinker’s argumentation and exposing them in a manner that forces the philosopher to produce a more comprehensive account of her or his views.

The conversations focus on three main puzzles that have troubled the philosophers’ minds since ancient times. First, is the question regarding the reliability of “moral intuitions”, our so-called “everyday moral sense” that prompts us in making moral judgments carrying strong feelings, despite the lack of sound rational justifications. Second, there is the old puzzle about the “objectivity” of our moral judgments: it appears that using the same “impersonal criteria”, different rational agents seemingly well-intended may very well arrive at different ethical conclusions. In Voorhoeve’s words, “we must decide how to respond to disagreements between good, though imperfect, enquirers” (4). Third, there is the difficult problem of moral motivation and the fact that moral reasons prevail in various concrete life-situations, without us being able to clearly indicate what these reasons are. The aim of this book is “to provide insight into contrasting answers to these three puzzles” (5). Given the fact that almost every thinker interviewed has something relevant to say on each of the three topics mentioned above, the structure of the book, divided into five parts, is determined by the intention of bringing together “interviews that are most directly relevant to each other” (6).

The first section contrasts two philosophers and a psychologist with extremely different views regarding the status of our moral intuitions. While Frances Kamm claims that a moral philosopher should strive to bring into light and understand our intuitive moral judgments, our spontaneous reactions to various moral cases being in fact an expression of a deeper “structure of morality”, the leading utilitarian philosopher Peter Singer reaffirms his suspicions about these intuitive judgments derived from “untrustworthy sources”. From Singer’s point of view, these “intuitions” are usually nothing more than remnants of “religious systems” that for centuries have shaped people’s way of seeing the world and are deeply rooted into our social practices and habits of thinking because of our education. There is also a large amount of cultural prejudice regarding the permissibility of gender, race or species discrimination still governing our everyday “intuitions”, as well as an inculcated easiness in accepting “social conventions that lack moral justification”. Finally, some of our moral judgments (as the ones stemming from the importance we spontaneously bestow upon the idea of reciprocity) “may have biological origins but also lack any deep justification” (50). Starting from here, Singer tries to explain some of his most controversial ethical views, openly acknowledging the lack of strength that moral reasons often have on us and our incapacity of always assuming the impartial point of view. For the renowned psychologist and Nobel Prize winner in Economics Daniel Kahneman, the area of moral intuitive judgments has proven to be a fascinating field of research. But he is challenging Kamm’s views, claiming that there are scientific proofs supporting the idea that “the mental operation of making sense of our intuitive judgments is a very different cognitive activity from having these intuitions” (75). If this is true, the entire case-based method in moral philosophy risks being merely a way of inventing rational justifications for what is driving our intuitive judgments in the first place. More than this, Kahneman argues that there is a methodological limitation of moral philosophy: it always has to deal with two or more cases at the same time because it is trying to establish general principles, but this stance prevents the philosopher from grasping the real intuitions that people might have when confronted with different cases one at a time. Finally, Kahneman holds that even if our intuitions “are indeed malleable to some extent” by means of reflection, we will always have “powerful but profoundly inconsistent intuitions”, which makes the task of achieving some “fully satisfactory reflective equilibrium” (82) an impossible one.

The second section of the book is dedicated to conversations with two philosophers who are famous for their commitment to virtue ethics. Philippa Foot and Alasdair MacIntyre share the reference points in their intellectual development and explain some of their guiding ideas. Referring to her book Natural Goodness, Voorhoeve emphasizes that for Foot, the objectivity of our moral judgments is assured by this fact: the way we assign moral virtues and vices is nothing but an “instance” of some general kind of evaluation of all living things “as defective or sound members of their species” (7). Moral goodness and badness are only particular expressions of the natural goodness and badness, having to do with a human will which is “either defective or as it should be”. Foot strongly believes that in spite of all the important cultural differences, we can still trace “a universal need for certain character traits and for certain rules of conduct” (101). The conversation with Alasdair MacIntyre, author of one of the most incisive and influent books on moral philosophy in the 20th century, After Virtue, is divided into two parts. First, there is a short recollection of MacIntyre’s fascinating intellectual journey, which led him from engaging in debates on Marxism, Christianity, and psychoanalysis, to a powerful criticism of all the modern moral theories and the proposal of a neo-Aristotelian conception of morality. In his view, as Voorhoeve shows, the virtues must regain their central place as “excellences of character that are both instrumentally useful” for attaining the goal of human “well-being” and also “an essential part of its attainment, their possession being itself a constituent of the good life” (114). The discussion then focuses on the differences between Aristotle’s original account and MacIntyre’s elaborations from Dependent Rational Animals, where he argues that only by realizing “our vulnerability to physical and mental illness and the nature of our dependence on others’ assistance” (123) can we get rid of the “illusions of self-sufficiency” and also rectify our common opinions on justice: understanding that justice in the family originally requires a “non-calculating way” of generosity, we will be able to see that in society as well, “a certain generosity beyond justice is required if justice is to be done” (125).

This virtue of generosity conceived as an asymmetrical relation to others would seem only an accidental trait of some members of our species in Ken Binmore’s vision, mathematician, famous economist and for some time a leading figure in the developing of what is known as the evolutionary theory of strategic interaction. In one of the most provocative interviews in the book, Binmore is taking on traditional moral philosophy, arguing that the starting question “How ought we to live?” is rather “nonsensical”, at least when its answer is supposed to be some categorical imperative, imposing upon us a particular way of conduct “irrespective of our actual preferences and plans”. “One must ask instead how and why these [moral] rules survive” (139), adds Binmore, explaining his naturalist and reductionist conception of morality as nothing more than an adaptation, “a device which evolved along with the human species” (140) because it was helpful for our ancestors to coordinate their actions “in mutually advantageous ways”. It would follow that our moral intuitions are basically biological fairness norms dependent on the particular circumstances under which human beings evolved: hominids lived together in small groups where reciprocity and some kind of “mutual insurance” proved vital for survival. In order to explain how we manage to solve everyday coordination problems by finding an “efficient equilibrium”, Binmore appeals to a modified version of Rawls’s “original position”, grounded on the assumption that we possess a capacity for “empathetic preferences” that “is written into our genes” (146). But when it comes down to the benefits that a descriptive science of morals could provide, Binmore is extremely cautious: it is not a question of imposing on us an egalitarian ideal of fairness, but simply of drawing attention to the fact that the “original position” is the natural device, the one that our intuitions “are keened to” (151). Allan Gibbard, the other thinker interviewed in the section about Ethics and Evolution, is somehow more optimistic than the Humean Binmore regarding our deliberative capacities and the way we are able to shape our behavior according to shared principles. Since “we are, in a sense, ‘designed’ by evolution for living together in complex social groups” (162), “we have been shaped by evolutionary forces to be persuadable” (163), capable of reaching agreement by accepting other people’s norms after joint discussions. The moment we break one of these shared norms, we normally feel guilt, derived from our belief that “others would rightly feel angry – resentful or outraged – at us for our actions” (169). That’s what morality, narrowly conceived, is all about. So feelings like moral anger and guilt prove to be “relatively cost-effective ways” of policing shared norms and restoring cooperation.

The fourth part of Voorhoeve’s book focuses on the possibility of producing a unified account of morality. The Harvard philosopher Thomas Scanlon believes that this rationale is to be found in the justifiability to others of our own actions. From Scanlon’s contractualist perspective, acting morally means acting on principles that you think others could not reasonably reject. It is interesting that according to this view, as Voorhoeves shows, “each person wields a veto in the imaginary gathering in which principles for conduct are agreed upon” (181); this “requirement of unanimity” is for Scanlon “the way to explain the authority of deontological or rights-based principles” over the utilitarian demand of maximizing the sum of well-being. More than this, adopting such conception of morality enables us to realize that there is a strong reason to be moral: it is “the only way of standing in a very appealing relation to other people” (190), avoiding estrangement. But what counts as a “reasonable rejection”? Is there “a criterion for what someone can’t reasonably reject”? “That is the question we should be asking” (204), replies Bernard Williams, undoubtedly one of the most influent moral thinkers of our times. In an interview given only a few months before his death, Williams explains that the attempt to provide a single fundamental reason for moral behavior and the search “for a system of ethical and political ideas that is best from a point of view that is as free as possible from contingent historical perspective” (199) are not the right manners of approaching moral and political philosophy. He focuses instead on the ways in which history and genealogy can help us “make some sense of the ethical” (203). For instance, we cannot fully understand our modern concept of liberty if we fail to grasp how this concept is linked to the fact that “competition is central to modern commercial society’s functioning” or if we don’t realize that it is only “because our legitimation stories start with less than other outlooks that liberty is more important to us” (200).

The final section of the book deals mainly with the possible relationship between moral reasons and “the reasons of love”. For Harry Frankfurt, the question “How should one live?” should not be answered by imposing on us some kind of moral requirements, but rather by finding out what are the things that we really love in life, “by uncovering the desires we have and want most fervently to maintain and act on”, as Voorhoeve explains. “We love something, Frankfurt says, when we cannot help wanting to desire and pursue it” (9). But this is “a misguided view of love” in David Velleman’s conception. We have to distinguish love – which is “a capacity to really see another”, as Iris Murdoch used to say – from the feeling of being in love, involving “misperception” or “transference” in a Freudian sense. So Velleman argues that both love and respect are synonyms of “an arresting awareness of a person’s value as an end”. Love goes beyond respect because it “disarms our emotional defences”, but these two remain kindred attitudes. It follows that “love and moral respect for people are actually supportive of one another. The experience of love is an experience that develops the moral sensibility” (252), educating us in becoming aware of the “incommensurable value” that each person holds.

There is a fundamental question underlying all these conversations, that Voorhoeve openly addresses in the Introduction: what can we “reasonably hope to gain from discourse on ethics”? He confesses that the experience of making these interviews left him rather “optimistic about the prospect of finding at least partial solutions to some of our ethical puzzles” (11). Even if such a thing remains to be decided by each reader of this book on her or his own, I think that on a more general level, Voorhoeve’s present work proves to be an excellent illustration of the two desiderata that have inspired philosophical inquiry since the time of Socrates. On the one hand, there is a special ability for critical thinking that we gain from doing philosophy, which would explain, using Frances Kamm’s words, why we can take it for a fact that “people who are trained in philosophy… are much better able to judge the validity of positions other than their own” (20). (And what a salutary training this may be, if it is true, as Foucault once said, that “taking distance on oneself” or “thinking otherwise than before” should be considered “the ethic of an intellectual in our day”! On the other hand, a demand for honesty and authenticity will always play an essential part in judging philosophers’ claims, ruining the credibility of those “who don’t live up” (21) to their moral principles.

Cristian Iftode

University of Bucharest

Cohen, G. A. 2008. Rescuing Justice and Equality. Cambridge, MA: Harvard. Pp. 430. ISBN: 978-0-674-03076-3. 430 pp.

As this review was being written, the news of G. A. Cohen’s death at the age of 68 was announced by his colleagues at Oxford. Although he had recently retired from full-time teaching, no one believed that Rescuing Justice and Equality would the last book published during his lifetime. However, his recent book has unwittingly become an important final work, not least because it highlights the many concerns that occupied the last twenty years of Cohen’s career, but also because it is a brilliantly argued attack on the almost laissez-faire liberalism that speaks as the dominant representative of Rawls’ philosophical ideas.

In Rescuing Justice and Equality, Cohen attacks the dominance of one part of Rawls’ theory of justice: the belief that, so long as the well-being of the worst off members of society is not made worse, any arrangement that increases the well-being of better-off members of society is morally acceptable. Following not in the foot-steps of his earliest work (for instance, the Marxist-thought epitomized in his Karl Marx’s Theory of History: A Defence. 1978. Princeton: Princeton University Press), Cohen instead adopts what might be termed a robust defence of his previous arguments with John Rawls. In particular, Cohen attacks what he sees as an artificial separation between people’s attitudes and social structure themselves, much as he did in his If You Are an Egalitarian, Why are you so Rich? (2001. Cambridge, MA: Harvard University Press).

However, Cohen’s new book is not an attack on Rawls per se but rather an attack on a certain strand of liberal thought that emerges from A Theory of Justice. Cohen has great respect for the Rawls and describes him as the writer of a work of philosophy that is eclipsed by at most only two others books of political philosophy: The Republic and The Leviathan. In a Hegelian moment, he calls Rawls a thinker who captured the spirit of his age with his A Theory of Justice (the import of this compliment depends, I suppose, on what one happens to think of late-capitalist society).

Traditionally, it has been possible to level at least two leftist critiques against Rawls, both of which spring from the same intuition: that Rawls has smuggled more into the initial position then he lets on. First, he can very specifically be accused of adopting a Western normative framework – viz., abstracting from Western norms to arrive at the fundamental rights ascribed to the individual. This is the approach that Akeel Bilgrami takes in “Secular Liberalism and the Moral Psychology of Identity,” (in R. Bhargava et al. 1999. Multiculturalism, Liberalism and Democracy. New Delhi: Oxford University Press) wherein he argues that no Muslim would have agreed to a social structure (arrived at from the initial position) that forbids aggressive proselytizing. This approach, however, is not available to Cohen, whose Platonism comes through in the second half of the book – norms of justice are, on Cohen’s telling, impervious to culture.

Another objection is however open to Cohen. The second classical objection accuses Rawls of arbitrarily adopting a division of labour between social institutions and the actions of an individual within that framework. In A Theory of Justice, Rawls wrote: “the primary subject of justice is the basic structure of society, or more exactly, the way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation” (1971, 7). Why the distribution of rights should be separate from the actions of individuals has never, to Cohen’s mind (or my own), been made sufficiently clear.

Cohen wants to rescue equality and justice from Rawlsian liberalism, and to restore the rightful place of social existence to political theory. To that end, he quotes Karl Marx, who said that “human emancipation” would only be complete “when the individual man ...has recognize an organized his own powers as social powers so that social force is no longer separated from him as a political power” (1). In other words, he wants to fight against the separation of state and society that is so pregnant in Rawls’ thought. The Rawlsian difference principle, properly understood, must apply equally to the choices of the state as to the choices of the people who inhabit it.

In the first section (‘Rescuing Equality’), Cohen attacks what he sees as the inequality countenanced in Rawls’ name. As I remarked above, it is thought just, under most Rawlsian approaches, to sanction differences in income if they benefit the worst off in society. The question is, however, in what way are they likely to benefit the worst off? And why is it the case that the best off need be better off to help the poor? In many cases, it is thought that differences in income will benefit the worst off by causing the more talented (and presumably better off) to work harder: a rising tide raises all boats, so to speak. If it is the case, however, that the best off will only work harder if they themselves will benefit, at a minimum it would seem that we are rewarding people’s selfishness; second, it would be a very poor argument indeed to allow the rich to argue for greater wealth based on their own greed.

Cohen challenges this belief, arguing that this incentive based approach goes against our most fundamental intuitions of what justice is. The Rawlsian formulation loses sight of the fact that individuals exist not only within a polity, but within a community as well: to encourage selfishness is to allow an anti-egalitarian ethos to flourish. It would allow the rich to hold the poor hostage by refusing to work harder if they did not see sufficient benefit in it. It would only make sense to adopt this condition if we separate the state from the population, and we call justice what the state does, regardless the actions of the population. Furthermore, as Cohen argues in a very technical section of the first half of the book, the choice is never between equality and some Pareto optimal arrangement (where inequality flourishes). If there is a Pareto optimal arrangement that accrues maximum benefit to the poor while maximizing inequality, there is also another Pareto superior arrangement (superior to the original social arrangement – the one arrived at after the initial position – which we have now already moved away from) that reduces inequality while also improving the lot of the poor. In other words, Rawls’ difference principle, applied in this way, is not a principle of justice at all, merely one of expediency.

The second half of the book, the counter-intuitively named ‘Rescuing Justice,’ examines the implications of Cohen’s attack on the application of Rawls’ difference principle in standard liberal thought. On Cohen’s interpretation of most orthodox Rawlsian thought, there is no injustice done when a situation of inequality prevails. Thus, all that is relevant when assessing a proposed change in social arrangement is the situation of the worst-off, relative to some baseline and not to the situation of the best off in any society. The genius of Cohen’s argument, if it holds, would be to render all constructivist arguments vulnerable to same objection, viz. “social constructivism’s misidentification of principles of justice with optimal principles of regulation” (275).

To say that a situation is just, Cohen argues, is not the same as to say that it is the best of all possible situations. “Constructivism about justice is mistaken because the procedure that it recommends cannot yield fundamental principles of justice” (294). The right principles of justice are not, Cohen claims, produced by the right sort of decision procedure. Constructivism makes the mistake of assuming that there can be a separation between the government and the people, on purely procedural grounds. Decisions procedures cannot produce principles of good governance identical to principles of justice, Cohen argues, because “things other than justice affect what the right social principles should be” (301). For example, one can say that certain values are too costly to implement, but one cannot then call such a social arrangement just.

Consider two examples, Cohen asks. First, someone makes maximum use of loopholes in a social arrangement to maximize individual profit, possibly at the expense of the worst off. Would such an arrangement reasonably be called just? In a second case, consider the question of something as banal as insurance deductibles. We require insurance deductibles not because we believe the unfortunate should pay for their misfortune, but because we think insurance deductibles will increase what some socially expedient acts, viz. people will be more likely to try to prevent fires if they will be partially held accountable for the loss. Under no circumstance would we call it just to say that people should be required to pay for accidents beyond their control (as would sometimes, if not often, be the case). To call such an arrangement just would be to confuse justice with a system designed to deal with the vagaries of the human condition.

Cohen’s actual argument in the book is painfully simple: I’ve more or less completely summarized it above. The strength of the book is Cohen’s excellent command of the relevant literature; yet the book’s strength is also one of its weaknesses. It is hardly a free-standing enterprise, but instead it stands on a foundation of a thousand other disputes. For that reason, a useful companion is Justice, Equality and Constructivism: Essays on G. A Cohen’s Rescuing Justice and Equality (Feltham, Brian, ed. 2009. Oxford: Wiley-Blackwell), if only for the fact that it summarizes standard responses to Cohen’s position, two of which are notable: “Justice is not Equality” by Richard J. Arneson and “Cohen to the Rescue!” by Thomas Pogge. Arneson’s essay, written by a philosopher who is otherwise sympathetic to Cohen’s criticisms, is important in that it settles on one of the core objections to Cohen: that what Cohen calls justice is not justice, but something else entirely. Justice is justice; equality is equality, but what Cohen calls justice – relying heavily on equality – is something else entirely. Pogge, in turn, shows how Cohen engages Rawls by assuming that there are fact insensitive principles (reflecting what Pogge calls Cohen’s Platonism) that subsume any constructivism (one such principle would presumably be Cohen’s egalitarianism). Pogge argues that what really separates Cohen from the constructivists (a label which Pogge eschews) is not the commitment to ultimate principles that Cohen expresses, but rather a pragmatic concern, on the part of the constructivist, to construct the best of all societies in this world – fraught as it is with human frailty.

Cohen’s book should be recommended then, at the end of the day, for one simple insight: he shows what we assume when we allow rampant inequalities, even for the sake of the poor.

Kevin W. Gray

American University of Sharjah

Public Reason

Journal of Political and Moral Philosophy

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